Education Law Articles - Defamation

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Defamation & Social Media

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We have all heard terrible stories of cyberbullying in the news and most teachers will have had to deal with this difficult issue. Hurtful things said in social media can wreak havoc on the victim’s confidence, health and general well-being. However, an ex-student of a school in NSW recently discovered that defamatory Tweeting and Facebook comments can also cost the perpetrator - in a BIG way!

At the time of the publications, the defendant (Mr X) was a young man, one year out of high school. His father had been a teacher at the school until he had left the school in 2008 to attend to personal issues. As a result of the father leaving, another teacher, (Ms Y) took over his position on an acting basis. Ms Y had an excellent reputation and was well regarded by students and teachers alike.

Unfortunately, Mr X (for some reason) felt that Ms Y was responsible for his father’s leaving the school. Acting on that belief, he published a number of defamatory comments on Facebook and Twitter about Ms Y.

Mr X had never been taught by Ms Y and could not be viewed as one of a group of students unhappy with a teacher’s performance. The comments he posted had a devastating effect on Ms Y. She immediately left on sick leave and only returned to work on a limited basis. If not for the publications, she intended to continue in the manner that she was teaching in 2012 until she reached the age of 65 (in about 7 years time).

Mr X failed to reply to the first letter written to him by Ms Y’s solicitors and later wrote in a reply to the second letter that “all comments referred to by you have been removed from my social media pages.”

He also said “I apologise unreservedly to Ms Y for any hurt or upset caused to her by statements made on my social media page.”

A sincere apology can go a long way to mending some of the hurt and upset caused. However, in this case, the sincerity of that apology was questionable. In Mr X’s initial Defence, he included a defence of truth. By relying on a “defence of truth” Mr X was effectively saying that he meant and believed every word he said (even though all the evidence pointed to his allegations having no foundation).That defence quickly fell away.

The judge ordered that $85,000 of compensatory damages be awarded to Ms Y reflecting the loss of income from employment. A further $20,000 was awarded in aggravated damages given the emotional distress of Ms Y and the defensive behaviour of Mr X. The judge stated that he also accounted for how quickly information spreads on social media.

It is a lesson for all social media users to be careful with what they say online. The case shows us that there is a consequence for our wrong behaviour even in the cyber world.

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Defamation against teachers

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Have you ever felt besieged or helpless when dealing with negative comments from angry parents? If those comments developed into a personal smear campaign against you, what would you do?

Although many teachers may want to do something about such parents, often it seems the only option available is to wait for the school year to finish or for the child to leave the school.

However, one primary school principal decided that she would not wait and brought a defamation claim against a parent in the Supreme Court of New South Wales. The parent, a father of two children at the school, sent an email to 14 other parents, calling for the principal to resign. The email described the principal as incompetent, dishonest and untrustworthy and accused her of causing a decline in the school’s educational standards.

Not all negative comments from parents are defamatory. First of all, defamation can only arise when the comments are published. Therefore, if a parent sends an email or letter only to the teacher, there is no publication and so there can be no remedy in defamation. In this case, because the parent sent the comments to many parents, the email was “published”.

Second, the teacher must prove that the imputations claimed were actually conveyed by the publication. This means that the teacher must prove that the comments made say or mean what he or she says they do. For example, if a comment is ambiguous or unclear, the teacher must prove that the parent intended the comment to convey a particular meaning. In this case, the parent admitted that the comments were published and agreed with the principal’s interpretation of their meaning.

The last point is that the comments must be capable of being defamatory of the teacher (that is, damaging to her reputation).

The law allows various defences to defamation. The defences are:

• justification,
• contextual truth,
• absolute privilege,
• publication of public documents,
• fair report of proceedings of public concern,
• qualified privilege for provision of certain information,
• honest opinion,
• innocent dissemination, and
• triviality.

A general idea of each defence may be gleaned from its name. However, as a broad guide, defamatory comments must be false, unjustified, stated as fact rather than opinion and sufficiently serious.

In this case, the parent was unsuccessful in each defence he pleaded. The principal was awarded $80,000 in damages for the great distress and emotional upset that she suffered, and her continuing sense of hurt. Damages for defamation are compensatory rather than punitive. However, in determining the amount in this case, the court took into account far more than the single email that contained the defamatory statements.

The email was part of a series of emails and letters sent by the parent, which included letters to federal government ministers and the Indian High Commission. The parent’s conduct “demonstrated persistence in his attack” upon the principal and was “in defiance of the letters from her solicitors”. He also refused to retract his statements or apologise, despite the commencement of the proceedings.

Before commencing proceedings, it is important to remember that defamation cases are difficult to prove and there is no guarantee of success. The parent in this case represented himself and did not produce any evidence in support of many of his claims. This gave a significant advantage to the principal. Other teachers or principals may not be so lucky.

Lastly, this is not a chance to get rich quick. Usually, making a claim for defamation will be difficult and a lot of hard work. The comments made must be very serious or part of a prolonged attack in order to recover a significant amount of damages. Teachers should be cautious in considering taking such action. However, if the comments amount to a persistent, false and damaging attack, teachers have this option to protect their reputations and be compensated for the harm done.
 

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Defamation in Schools

Can a school be said to have published defamatory material in circumstances where it is published on a website that was accessible on computers within the school (computers that were supplied by and the property of the school), the principal is told and asked to remove it, or to take steps to ensure it was not seen, and the principal failed to take those steps or to respond to the request made of him? A NSW Supreme Court judge has said that this is arguable and the Court of Appeal did not disagree.
 

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Teachers Defamed!

A. Teaching Methods

The head English teacher at a country high school adopted a wide variety of teaching methods, one of which was "accelerative learning". His students generally performed well. However, in 1994 one of the school's English classes did poorly in the HSC English exam. In 1995, the teacher was interviewed by Channel Nine about the theory of "accelerative learning". On the program, educational academics also criticised controversial aspects of the theory.

The teacher sued Channel Nine for defamation. He claimed that the program portrayed him as irresponsible in that he encouraged the controversial aspects of the teaching methods without notifying the parents that such a radical change in teaching methods had occurred. Furthermore, the program suggested that the HSC class which had performed poorly was taught partly by "accelerative learning". However, none of this was true.

The court found that the television program misrepresented the teacher's teaching methods. The program indicated that the methods were new and untested when in fact they were not. Hence, it could not be said that the teacher acted irresponsibly towards his students and their parents. Furthermore, the imputation that the students had performed poorly in their examinations due to the teacher's teaching methods was likely to lead to damage to the teacher's reputation and to further hurt his feelings. Accordingly, Channel Nine was found to have defamed the teacher and could not rely on the defences of truth, qualified privilege, fair comment and unlikelihood of harm.

B. Honesty

Honesty is an essential quality of a teacher "in the proper performance of his or her professional duty", the NSW Court of Appeal recently noted. It was found that the need for honesty is required in all facets of a teacher's professional life, their professional duties and also their role as a model for students.

Concerning the Court was a defamation case against Fairfax Publications brought by six Sydney high school teachers. The teachers had been in a number of disputes with the principal of their school, and the NSW Department of Education, having failed to settle the disputes, eventually transferred all six teachers and the principal to different schools. The six teachers did not attend their newly assigned schools, and applied for stress leave.

Shortly after the applications for stress leave, the Sydney Morning Herald published an article which imputed that the teachers had pretended to be suffering from stress in order to avoid transfer to a new school, and had therefore behaved dishonestly. It was this imputation of dishonesty that was the primary concern of the Court.

The need for honesty in the teaching profession was stressed. The Court concluded that an imputation of dishonesty, as found in the article, directly reflects on the personal and professional character and attributes of a teacher, and is therefore defamatory.
 

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School boys cut and paste their way into court

One Sunday, Hendrick, a 15½ year old South African school boy, was surfing the internet. While on his school’s website, he saw pictures of the principal and deputy principal. These pictures brought to his mind an episode of South Park in which the head of a boy was placed on the body of a gay bodybuilder by another boy. He thought that the transposition of the heads and faces of the school principal and deputy on to gay bodybuilders might result in an enjoyable spectacle.

Hendrick went to a site dedicated to gay bodybuilders and found a picture of two men naked and sitting next to each other in sexually suggestive and intimate circumstances. They sat close with the right leg of one over the left leg of the other and with their hands evocatively in the region of their genitals. Hendrick attached the head and face of the deputy to one of these bodies and the head and face of the principal to the other. He then took the school badge from the school website and placed one on each of the bodies on the image so as to obscure the hands and genitals. It took him less than five minutes to perform this exercise.

Apparently satisfied and amused by his own handiwork, Hendrick felt the need to share his achievement with a close friend and sent it to his friend’s mobile phone. He went to church later that day and met that friend who, in his presence, sent the image to a fellow student’s mobile. When Hendrick saw this happen, he begged his friend not to distribute the image to anyone else, emphasising that the image should be for his eyes only. Hendrick understandably became concerned about the consequences of the wide circulation of the image and in particular, the possible response of the school authorities, more especially the responses of the principal and deputy, when they found out about the image. Hendrick clearly recognised he had done something wrong as far as school discipline was concerned. Not surprisingly, the image was quickly circulated amongst many of the students despite Hendrick’s wishes.

Some days later, Burgert, a 17 year old student, who had received a copy of the image on his mobile, thought it would be a good idea to print and take it to school to show it to others. He printed the image on the top half of an A4 piece of paper in colour; it was slightly bigger than a postcard. He took the printout to school the next day and showed it to several other students. One of them suggested that the printout be placed on the school noticeboard. Another 17 year old student, Reinardt, agreed to do this. Reinardt had earlier shown the image on his mobile to a teacher who laughed at it. Burgert and Reinardt went together to a noticeboard controlled by students which advertised social events at school. Reinardt placed the printout on the board. It remained there for half an hour.
The school authorities disciplined the three boys for this conduct. The three admitted what they had done. Their punishment was that they were prohibited from assuming leadership positions at the school or from wearing honorary colours for the rest of that year. In addition, they had to undergo detention at school for three hours for five consecutive Fridays.

The three boys were charged criminally at the insistence of the deputy. These charges were resolved through a diversion process and the boys had to clean cages at a local zoo as community service.

Burgert and Reinardt’s apology to the principal was accepted but the deputy refused to entertain discussion of an apology. Instead, the deputy sued the boys for defamation (injury to his good name and reputation) and for injury to his dignity, claiming R600,000 (about $72,500).

The case moved through the South African court system finally reaching the highest court in that country, the Constitutional Court, in 2011 where 10 judges heard the matter. To summarise an 85 page judgment: six judges found that the boys had defamed the deputy; two others said he had not been defamed but his dignity had been injured; and two judges would have dismissed the claim entirely. The majority made it clear that cartoons, caricatures and jokes can be defamatory. They also noted that the purpose of associating the deputy with men behaving indecently was to tarnish the image of the two figures representing authority; to reduce that authority by belittling them and by rendering them the objects of contempt and disrespect; and to subject these two figures of authority to ridicule in the eyes of the observers who would predominantly be students at the school. In other words, the average person would regard the picture as defamatory of the deputy.

The boys argued that to regard the picture as defamatory would be to lose touch with the ways of schoolchildren and schoolboy pranks. The majority responded that, even though it could be called a schoolboy prank, it humiliated and demeaned the victims of the prank.
The judges said that the reasonable observer would accept that teachers are often the butt of jokes by their students and that these jokes must not be taken too seriously but added “Yet there is a line that may not be crossed. That must be so because teachers are entitled to protection of their dignity and reputation; no less than to the protection of their bodily integrity.” The line is crossed when the joke becomes hurtful; when it represents the teacher as foolish, ridiculous and unworthy of respect. The boys had crossed the line.

The main dissenting judge was very much of the view that children were vulnerable and weak, that they found it difficult to express opinions and to communicate, and that you couldn’t expect children to be able to express their reaction to authority in a capable, sophisticated and respectful way. He also felt strongly that suing students was not the way teachers ought to deal with indiscipline at school.

The deputy was awarded damages of R25,000 (about $3,000). The boys had to pay his costs of the very first court hearing but there were no costs orders for the two appeals. The deputy is likely to have ended up well out of pocket!

It is unusual, if not unknown, to sue children in defamation in Australia. One good reason for this is of course that most children do not have the money to pay damages awards made against them. This South African case illustrates well some of the other problems in suing children in defamation. For example, one is not likely to get much in the way of damages because the court will take note of the fact that the people being sued are school children who, as in this case, have probably already been disciplined at the school level for what they have done.

Interestingly, the Court ordered the boys to tender an unconditional apology to the deputy for the injury they caused him. Courts do not make such orders in Australia.
 

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