Legal Ethics, Defamation And The Internet: Piscioneri v Brisciani [2015] ACTSC 106
Monday 1 June 2015 @ 12.23 p.m. | Torts, Damages & Civil Liability
A legal practitioner has won a defamation case against online forum ZGeek after the ACT Supreme Court found that the posts on the website had exposed her to “hatred, ridicule and contempt” and conveyed “serious imputations of unethical conduct” against her. The judgment raises a number of interesting issues around defamation and how the law should be applied to an online environment.
Case Background
The plaintiff, Gabriella Piscioneri, came to the attention of ZGeek in 2005, following the trial and conviction of the Skaf brothers for several counts of aggravated sexual intercourse without consent. After the trial had concluded, the jury foreperson (who was acquainted with the plaintiff) disclosed to her in a social setting that he and some other jury members had visited the crime scene, despite being instructed by the judge not to do so. The plaintiff reported this to the Court, in line with her duties as a legal practitioner. The convictions were quashed and a retrial was ordered.
Allegedly in response to media reports on the subject, a number of threads appeared on ZGeek in 2005, including one by “Pirate” [the defendant’s user name] in the “Tool of the Week forum”. A separate series of posts was started in another forum called “Bitching and Rants” by a user named “dilligaf”, which involved calling the plaintiff a “f***ing moron”, who was “riding her f***ing high horse… and cant keep her mouth shut” and said “she should do the time that these guys get off”.
The plaintiff only became aware of the posts in 2009. She then wrote a number of letters to the defendant, who was the owner of ZGeek, and the defendant’s lawyers at the time, asking them to take down the posts mentioning her. A further number of posts were then made on the ZGeek websites in 2010. These posts, unlike the 2005 series, did not mention the plaintiff by name.
Liability
Justice Burns considered the issue of liability for the posts, noting that “much of the material complained of is written by people other than the defendant”. However, he found that because the defendant had authored some of the ZGeek posts, including the original mention of the plaintiff in the “Tool of the Week” forum, and could moderate the content, His Honour found that he could not be considered a mere “passive facilitator” and could be held liable for his posts and vicariously liable for the posts of others.
Publication and Re-publication
His Honour also considered “publication” in respect of internet materials. While some of the ZGeek matter was published on the website, the initial “Tool of the Week” post was accessible through the “Wayback Machine”, which archives posts from the internet. He concluded that he was “satisfied that this constitutes republication, as archival of online material is the natural and probable consequence of posting material online” [at 51].
Forums and Context
Justice Burns then turned to the matter of “context”. One of the defendant’s arguments was that the 2005 posts could not be considered defamatory, because when read as a whole, it was clear other users had explained the plaintiff’s duty as a solicitor and “redeemed” her character. However the plaintiff argued that threads in a forum should be considered severable, as contributors to a discussion might not come back and read further posts. His Honour noted that assessing “context” in this type of forum was difficult:
“Whilst the context of a newspaper article is static, the tone and content of the discussion contained in the ‘Bitching and Rants’ forum developed as each responding post was published, meaning that the context of the discussion was constantly changing with each new post.”
Justice Burns rejected the argument that each post would be severable, saying for example that a reader may read only the first paragraph of a newspaper article, but common law would still require the whole of the article to be considered. He found that while the original post by itself had a “defamatory sting”, by the end of the thread “the ordinary, reasonable person would understand that the plaintiff was under a duty as a solicitor to report the conduct of the juror” [at 64].
However, he concluded that the “Tool of the Week” post was defamatory, as it was on a separate page and “conveys an imputation that the plaintiff acted unethically, and exposes the plaintiff to hatred, ridicule and contempt.” Although the posts were abusive, and abuse alone is not necessarily defamatory, he found that they also alleged serious unethical conduct by the plaintiff and thus found they were both abusive and defamatory.
Decision
In regards to the 2010 posts, the plaintiff had difficulties in demonstrating that anyone apart from one user had managed to successfully identify her with the person being discussed in the forum. While His Honour found the posts were defamatory, damages were limited as only one person (purported to be a site moderator) was able to identify the plaintiff.
Justice Burns dismissed the defendant’s arguments on qualified privilege and honest opinion, saying “a cursory investigation into the matter should have revealed to the defendant that any legal practitioner in the plaintiff’s position would have been under a duty to disclose the jurors’ conduct to the court” [at 97].
The plaintiff was awarded $82,000 in damages.
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