"Did you see that story on her Instagram?!" – Instagram post provides basis for defamation suit

A feature of several social media platforms is the ability to post short, erasing "stories". Essentially, one can post photos, captions, videos and the like that are available for a short period of time, unlike a person's social media "feed" which is available until deleted by the account holder.

Can those short stories defame someone?

According to the District Court of Queensland (in a recent decision of BeautyFULL CMC Pty Ltd [2021] QDC 111) the answer is "yes", such stories can in fact found an action in defamation.

An ex-employee goes onto Instagram

The first plaintiff, BeautyFULL CMC Pty Ltd, was a cosmetic medical clinic located in Morningside, Queensland, while the second, third and fourth plaintiffs were the director of the business, and the two founders (Plaintiffs). The business had an Instagram account, which had 19,700 followers, and was an “excluded corporation” within the meaning of section 9(2) of the Defamation Act 2005 (Qld), which gave it standing to sue.

The defendant had been employed as a receptionist at the business for several years, having finished employment on 16 October 2018. She operated her own Instagram account, which had 1,844 followers. Following the cessation of her employment with the business, she suffered ongoing mental health issues, which included periods of hospitalisation.

The matter involved four publications by the defendant, however, only two involve Instagram and are the focus of this note.

Prior to 30 March 2020, the business' Instagram account included pictures of one of the Plaintiffs, who was known as "Dr Margaret". Below one of them was the following caption:

Dr Margaret serving during COVID-19. [trophy emoji]

The Plaintiffs led evidence that, during that time, Dr Margaret had referred patients at the business for testing for COVID-19.

The defendant responded to the post by posting a picture on her own Instagram account's story. She used the same photo, which she took from the Plaintiff's Instagram post and edited. She blacked out Dr Margaret's face and the word "Margaret" was ruled through (though still able to be read). It remained clear that the photo was of Dr Margaret, as you could still see her hair. She applied the following text over the photo on the story, in a series of five posts (the First Publication):

Before you watch my story I am not naming and shaming but when I see a company upload a FAKE photo that a medical practitioner is going to work on the frontline during the Covid-19 crisis, it’s disgusting and disrespectful to the people who are actually putting their lives at risk to save others

The same uniform was given to one of the staffs mother to wear and fake it that she’s working on the frontline. How do I know this?

Because I used to work there and I ordered the uniforms off www.springspawear.com

I would love to thank the REAL hero’s that are working day and night to save lives.

CORONAVIRUS (COVID-19) it’s such a serious situation that I don’t understand why a company would lie about it

The defendant also left a number of abusive messages and comments on the business' Facebook and Instagram accounts, which were deleted by the director of the business.

The director gave evidence that, after the defendant posted the First Publication, he was contacted by a number of people indicating that they had made a connection between the First Publication and the business, as did a number of the employees of the business. The Plaintiffs argued that the First Publication was defamatory of the business and Dr Margaret in that it communicated the following imputations:

• the business had caused an entirely fabricated representation to be made that Dr Margaret, as a medical practitioner, was involved in the frontline in the COVID-19 crisis;
• the business had fabricated a photograph to be uploaded on the business' social media for the purposes of promoting the business;
• the business knowingly caused the dishonest representation to be made that employees or associates of the business had falsely asserted that Dr Margaret, being a medical practitioner, was at the forefront of dealing with the COVID-19 crisis when she was not;
• the business had dishonestly taken advantage of the existence of the COVID-19 crisis to cause a knowingly false representation to be made as to its activities for commercial gain or publicity;
• during the COVID-19 crisis, it engaged in conduct which was disgusting and disrespectful to the people who were actually putting their lives at risk to save others.
• Dr Margaret engaged in unethical conduct as a medical practitioner by permitting herself to be the subject of a promotion about her professional activities which she knew to be fake.

The defendant denied that the First Publication was about the business and Dr Margaret, although she did not lead evidence as to who it was referable to, or why she posted the First Publication. She also pleaded that the First Publication was true, relying on the defence of justification.

On 2 May 2020, the defendant went to the house of an ex-boyfriend of one of the founders of the business, between 1am and 3am. She had contacted him through Instagram, using a fake name, photograph and account. Once she was allowed into the house, she berated and swore and the boyfriend, and was eventually removed from the premises without any real force. On 10 May 2020, the defendant then posted a further story on her Instagram account showing that she was at "Princess Alexandra Hospital, Bri", followed by the words:

If you want to know how I ended up here

This was followed by an arrow, linking to the next photo. That photo was of her face, and then her lip, and then her bruised face and knee, with the words:

I was a victim of physical assault causing bodily harm

If you would like to ask about it. I’m happy to answer.

HASHTAG STOP ASSULT

Her next post contained the words "who assaulted you", together with a picture of the defendant wearing her work uniform from the business. Underneath the photograph were the words "beautyfullcmc.

She then posted:

I cannot legally say names

but my ex employer of 3 yr is involved

if you would like to ask about it I’m happy to answer

I legally can’t go into detail but I was attacked... thank God for my amazing boyfriend.

The posts were taken down the following day.

The plaintiffs alleged that these posts (the Second Publication) was defamatory to each of them, in that it gave rise to the following imputations:

• the business had permitted natural persons, being one or more of the second, third and fourth plaintiffs, who operated and conducted the business, to assault the defendant;
• the business had an involvement with the natural persons who perpetrated the assault upon the defendant;
• that the persons who assaulted the defendant did so with the consent of the business and worked with the business, causing injuries to the defendant;
• that the second, third and/or fourth plaintiffs had unlawfully assaulted the defendant or caused or been involved in the assault of her, causing significant injuries to her such as to require hospital admission.

The defendant argued amongst other matters, that she had not identified anyone, that the Plaintiffs were not identifiable from her post, that the post did not give rise to the imputations, and that in any event, the Second Publication was true given the ex-boyfriend's association with one of the Plaintiffs, and the fact that he had caused her injuries.

The Plaintiffs issued a concerns notice in respect of each of the above publications. The defendant's response was twofold – first, she responded by email as follows:

BAHAHAHAHHAHAHAHAHAHAHHAHAHAH

Five minutes later, she responded further:

Send it to my real account next time not the fake one claiming to be Claire Hayes (me). You got caught in you’re f***** up games you’ve committed identity theft for setting up a debit card, mirroring my phone and ILLEGALLY ACCESSING MY MEDICAL RECORDS.

Get a f****** life, how embarrassing you go to so much effort and time being obsessed with my life.

Grow up and PLEASE STOP HARRASSING ME!”

The Plaintiffs then commenced proceedings against the Defendant in respect of the publications. They sought damages, including aggravated and compensatory damages, interest, and an injunction restraining the Defendant from further publishing any defamatory publication concerning them. Although the defendant filed a defence, she did not give evidence at the proceeding.

Why the Court found the Instagram posts were defamatory

As a general observation, the Court outlined that Instagram (and other social media platforms) were often "infected by personal grievances in an obnoxious manner", and were not always a reliable source of information. Personal social media accounts were not like newspapers or those of media outlets, and thus are less likely to be given as much credence or credibility as such platforms.

Named and shamed

The Court noted that, while the First Publication indicated that the defendant was not "naming and shaming", it was clear that this was her intention, and that an ordinary reasonable person with knowledge of inter alia Dr Margaret's role, the business, and the COVID-19 pandemic, would have concluded that the First Publication was referable to the business and Dr Margaret.

The Court held that the defendant's denial that the First Publication was about the business and Dr Margaret was "absurd", given that the words "Dr Margaret" were clearly able to be read – drawing a line through the name did not hide it from viewers. It was also satisfied that it would have been understood by customers of the business and that a number of people had viewed the story and made the connection. As such, it held that the First Publication was:

• referable to the business and Dr Margaret; and
• defamatory to them, in that it would lower their reputation in the estimation of ordinary reasonable members of society.

The First Publication was also not true – the Court broke down the wording, and was satisfied that, based on the evidence as to Dr Margaret's work in the period of the original post and the general way in which it was worded, that it was not open to the defendant to make the First Publication.

As to the Second Publication, the Court noted that the business was a family company, and given the general nature of the post "my ex-employer is involved" and the fact that she was wearing the business' uniform in a photo within the post, the Second Publication was defamatory of the Plaintiffs as a whole. The Plaintiffs also led evidence that they had received about half a dozen comments from employees of the business regarding the Second Publication, and had received abusive communications about it by phone and social media, suggesting that it was sufficiently referable to the Plaintiffs.

The imputations were also held to have been made out, and were defamatory of the Plaintiffs.

Truth as a defence

The Court was not satisfied that the ex-boyfriend's removal of her from his house suggested that the Plaintiffs were "involved". Further, the episode at his house had been video-taped showing that she had not been assaulted in the manner claimed. As such, her truth defence was held not to have been made out; rather, the Court described it as:

"a reflection on the defendant’s sense of self-justification for her outrageous conduct shown in the video recording and her animosity towards the plaintiffs evident in her conduct of the whole of the action."

Damages

As to damages, the Court considered recent awards and determined that the publications warranted a total combined award of $75,000 (arising from all of the publications), inclusive of the second, third and fourth defendants having their components increased by 50% for aggravated damages. Interest was additional.

The Court noted that general damages can be increased by a defendant's refusal to apologise and by the conduct of the defence. Running a defence without a proper basis can enliven an award of aggravated damages. This can be because running an unjustifiable defence can increase injury to a plaintiff’s feelings and cause increased indignity. Such an award must have an appropriate and rational relationship to the injured feelings and should not contain an impermissible punitive element. In this case, the defendant’s failure to give any evidence to explain or in any way to justify any of her publications was illustrative of her lack of concern for the hurt she inflicted on each of the Plaintiffs.

The Court also ordered that the defendant be prohibited from publishing on any social media platform material which had the effect of defaming any of the Plaintiffs.