The recent decision of Armstrong v McIntosh [No4] 2020 WASC 31 has found that text messages referring to the plaintiff as being ‘an evil person’ were defamatory, despite being sent to only one person.
The plaintiff claimed that the text messages, sent by the defendant to his friend, were defamatory and he sought damages, including aggravated damages, as well as an injunction to restrain the defendant from making any further publications with the same defamatory meanings.
The defendant made the allegations over a series of text messages implying that the plaintiff was evil, a liar, that he had acted in such an unchristian way that his parish priest thought ill of him, that he didn’t deserve to associate with the defendant’s family and friends and that he conspired with other people to ruin the defendant by nefarious means.
It was interesting that in assessing damages, the court considered that the means of publication was a factor. Despite text messages often being informal and spontaneous in nature, the defendant in this instance wrote long, well structured, grammatically correct messages, which would be perceived by the ordinary person as being something that was expressly considered by the defendant and not an offhand remark as he had argued they were.
The court also found that whilst the gravity of the material in the texts was serious it should be weighed up against the fact that the texts were only published to one person. For this reason there was ‘minimal damage’ to the plaintiff’s reputation and that there needed to be an ‘appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.’
The plaintiff was awarded just $6,500 in damages and aggravated compensatory damages of $1,500. The court also awarded an injunction restraining the defendant from publishing the words complained of or any similar words defamatory of the plaintiff.
This decision shows that the publication of sms messages, even to just one person, can be found to be defamatory and caution should always be taken before pressing send. For us however, the decision also provides an excellent example of a plaintiff winning their defamation action and yet being awarded damages by the Court that would no doubt have been dwarfed by the legal fees that they would have spent in pursuing the action and still considerably less than the legal fees that they will likely recover from the defendant. In pure commercial terms therefore, likely a Pyrrhic victory.
Cove Legal specialises in resolving legal disputes with particular expertise in bringing and defending defamation claims. Principal Roger Blow is recognised as a media law expert, particularly in liability arising from the use of social media. He regularly provides commentary concerning media law issues to television, radio stations and newspapers.
Roger Blow, Practice Director, P: +61 8 6381 0326 or e: roger@covelegal.com.au
This publication is not intended to provide and does not provide legal advice. You should seek professional legal advice relating to your specific situation(s) before taking any action based upon its contents.