Outrageous and destructive comments and opinions are published sometimes on social media about judges and competitors. Plain disrespect, self-aggrandisement, simple jealousy or ignorance of what’s correct are some factors that motivate attacks. When do these self appointed critics and amateur online publishers (let’s call them the disgruntled) go a step too far and expose themselves to a claim for defamation?

If the ordinary reasonable person in the community would think less of the judge or competitor because of the meanings that the words convey (whether literal meanings or imputations arising from the words), a defamation has occurred. What the disgruntled intended to say is irrelevant: it is the meaning of the words that are relevant. This ordinary reasonable person test is frequently adopted in the law when an objective standard is required against which to measure conduct, in this instance whether someone’s reputation was harmed in the eyes of the law.

One of the essential ingredients of a defamation claim is the identification of the claimant (that is to say, the judge or the competitor) in the publication. If the claimant is named, there is no problem. But if the claimant is only a member of a non-specific class of people that is the subject of the attack (for example, ‘judges’ or ‘competitors’) then the claimant is unable to prove that he or she is identified.  By contrast, defamation of unnamed judges at a specific event would be a defamation of each and every judge at that event who would be identifiable with the aid of extraneous information. If some readers have personal information which enables them to identify the claimant who is otherwise unnamed, this is sufficient.  In the eyes of the law, the fact that the claimant feels that he or she is singled out is insufficient: Identification must be proven, on the balance of probabilities.

A demand and of course any ensuing legal action must be against someone, the defendant. The author of a defamation is liable and so too the online media business on whose platform the article was published. The identity of the author might be apparent from the comments or opinion or ascertainable from the contents of the article in combination with other information, or anonymous. The online publisher won’t voluntarily disclose the name of the author because of privacy concerns although the courts have processes that can compel disclosure. The name of the online publishing business will be ascertainable but it may be a behemoth (like Facebook) with deep pockets to defend a claim.  If the business is based overseas, there are also complexities and extra costs involved compared to a business that is incorporated within Australia.  So for practical reasons, the author of the publication will be the defendant of choice in most online defamation cases unless the defamation is really serious, the claimant has in fact suffered serious reputational damage and he or she possesses the financial means to pursue a case.

Another important factor that a claimant (judge or competitor) must consider upfront is whether any defamatory meaning is defensible. In the scenario under consideration, the most relevant defence is one of ‘honest opinion’.  After all, this is exactly what the disgruntled believe they are expressing.

The defence of honest opinion (or fair comment by which it is also known) requires proof of a number of things.  First, the meaning must be an expression of opinion.  From a legal point of view, the opinion/comment must be clearly distinguishable from the facts upon which it is based. Second, the opinion must be on a matter of public interest.  Third, the opinion must be based on material that is substantially true. Fourth, the facts relied upon must be contained in the publication. These ingredients are not easy to prove.  As online posts and comments are prepared hastily or emotionally in many instances, without regard for truth, accuracy or completeness, they will not usually be composed with one eye on these legal requirements. It is one thing to say that you believe in your personal opinion that a judge is biased or that a rider is incompetent after setting out true (and provable) facts to support the opinion. It is another thing entirely to assert that a judge is corrupt or a competitor mistreats horses, as if it were a fact, without laying out a bedrock of true and provable facts to support the opinion.

While a claimant in defamation does not have to prove an intention to cause harm, the law does not compensate hurt feelings: There must be reputational damage suffered by the person defamed from the standpoint of the ordinary reasonable member of the community applying contemporary standards.  A lawyer evaluating a potential defamation claim will want to know of witnesses who have read the publication, get some idea of the scope of the publication (for example, how many hits or downloads) and assess the personal and financial impact the words complained about have had on the claimant.

It is disappointing that sporting governing bodies do not play a greater role in censuring members who denigrate or speak ill of fellow members or officials or bring them or the sport into disrepute. In the absence of pro-active, effective disciplinary arms to those bodies prepared to caution and sanction unacceptable online behaviour, the time will surely come when a line is crossed and a well healed claimant will sue for damages for harm caused to his or her reputation.

15 January 2018

© 2018 Michael Mackinnon, Solicitor & Independent Counsel