A growing number of horse sellers contact me over Facebook posts by disgruntled buyers whose expectations are disappointed through no fault of the sellers. When a request to return a horse for a refund is rejected, these buyers have turned to Facebook for comeuppance by posting damaging comments about the sellers. Resorting to social media has sometimes occurred after attempts at redress through legal intervention have not been pursued or even failed, revealing the vengeful nature of these buyers.
Facebook is a publishing platform like no other, offering every horse buyer the opportunity to say whatever they like, for free, immediately. The problem is that the Australian law of defamation applies to publishers great and small, from News Corp down to the individual horse buyer posting on-line from the confines of his or her own home.
A defamation is in indefensible publication of a word (or a combination of words) about a seller which conveys a meaning (or several meanings) which harms the seller’s reputation or would likely lead persons to shun, avoid, ridicule or despise the seller, in other words, to think of the seller in a lesser light. In the instances that have come across my desk, the sellers have complained about imputations (meanings) of dishonesty, deceitfulness, even criminality on their part. To say that a seller is a liar, a cheat, untruthful, dodgy, not to be trusted, and so on, is defamatory if incapable of substantiation (truth) or if indefensible on the technical legal ground of ‘fair comment’.
A buyer might not identify the seller by name believing this to be adequate safeguard against legal action. Identification of him or herself as the person defamed is one of the criterion the seller must prove in a claim of defamation. But the buyer should think again: If a reasonable person would understand the word or words to refer to the seller, by reason of background knowledge or from details or descriptions in the post or even from ensuing comments, this is sufficient. For example, if it was generally known that a horse was sold by someone, the seller does not have to be named in the Facebook post to be identifiable.
There is another risk peculiar to social media that brings home the truism that Facebook is not a safe place for unleashing on a seller. If friends are motivated, as they often are to display solidarity, they can ‘like’ a post, add their own comments or share it. Doing so, they potentially become liable under defamation law for republishing the original defamatory statement. Friends can become unwittingly liable to a seller whom they may not have met or even heard of before.
The legal consequences of indefensible defamation of a seller might be an award of compensation (damages) for the hurt caused. Depending on the seriousness of the defamation, the affect on the seller, and if the buyer offered to make amends when contacted by the seller, a damages award might be any sum up to $20,000 or even more.
A disappointed buyer must avoid online platforms to attack a seller over perceived injustices. A lawyer can advise if there is a basis for a legal claim against a seller over the sale of a horse. Our Courts and Tribunals are the proper venues to seek vindication of rights, not Facebook.
15 October 2018
© 2018 Michael Mackinnon, Solicitor & Independent Counsel