AN INTERESTING DECISION from the Court of Appeal in the UK delivered just before Valentine’s Day should make people think twice before posting on Facebook … especially when it concerns their ex.
The case in question is Stocker v. Stocker – where a husband sued his wife for defamation.
It’s a classic story of a wronged ex and a new girlfriend – but the attempt by the wronged ex to connect with the new girlfriend on Facebook means this story ended in the defamation courts.
Facts of the case:
After 13 years of marriage and one child, the Stockers separated and acrimoniously divorced.
In early December 2012, not long after the separation, the ex-wife sends a friend request to her estranged husband’s new girlfriend, Ms Bligh, and the new girlfriend accepted her as a friend.
The estranged wife managed not to post anything on the girlfriend’s Facebook page for a whole three weeks but when she did, it was electric.
Immediately the girlfriend asked the ex-wife to phone her, implying that she shouldn’t be posting material which was defamatory on the Facebook wall, but the ex-wife persisted:
I hear you two have been together for two years? If so, you might like to ask him who was in bed with him the last time he was arrested.
This was one of the least offensive things that the ex-wife posted on the Facebook wall.
The ex-husband sued her for defamation.
There was no question that the matters complained of were defamatory – they were (generally) untrue and had a profound effect on the ex-husband’s character.
The businessman won the original libel case against his ex-wife at the High Court in London in 2016.
However, the ex-wife then raised an issue that the Court of Appeal had to address.
Who is responsible?
The ex-wife claimed that she thought that the messages were private as Facebook allows users to set their wall posts as private.
However, the exchanges between the ex-wife and the girlfriend which were posted on the girlfriend’s Facebook wall were accessible to her Facebook friends.
Evidence was given by at least three individuals that had seen the posts.
The ex-wife argued she was not responsible for the publication of her posts as they were put on the girlfriend’s Facebook wall. She argued that the girlfriend was responsible for the publication and should have ensured that the settings were set to private.
The Court of Appeal held that any person who puts a comment on a Facebook wall was publishing it to any friend who may access it.
The fact that the girlfriend could have altered her Facebook setting to inhibit access to the exchange by her friends did not absolve the ex-wife from the obligation to take reasonable steps to ensure privacy.
Unless the ex-wife had asked the girlfriend to confirm that the exchange would be private she had no right to presume that it would be and is liable for the consequences.
No different to public noticeboard
The Court of Appeal found that there was no obligation on the girlfriend to privatise her Facebook wall.
The judgment said that the comments on the girlfriend’s Facebook wall were no different in substance or in principle than putting up a notice on a conventional noticeboard accessible to third parties.
The ex-wife used what she knew to be a “semi-public mode” of publication to make remarks to the girlfriend that were accessible to others and she was the originator of the libel.
She was either aware that the Facebook page she was posting on was accessible to the public, or at least she had some concerns that it was semi-public, but she posted regardless.
As a result of this the ex-wife was found to be liable and lost the appeal.
In this case the ex-husband waived any damages but media reports indicate that the ex-wife could be looking at legal costs of more than €220,000.
What’s the lesson?
Whether it’s as personal as the new girlfriend of an ex or as public as the comment section of a famous celebrity fan page – make sure what your post is not defamatory.
It must be true and not damaging to someone’s reputation, but almost more importantly do not assume that your comment will not be seen be members of the public.
It might seem self-evident but it is now a matter of law that you are answerable for your comments, you are responsible for what you publish on Facebook or elsewhere.
Simon Carty is a partner and head of the Media Law Department at Crowley Millar Solicitors and is a member of the production team for the Mrs Browns Boys TV series.
Click here for more articles by Simon Carty.
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