Think before you post – Instagram story found to be defamatory

The recent Queensland District Court case of BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111 is a timely reminder to all social media users to be careful with what they post.  Even what may seem to be a casual comment about a person or a business may have serious legal ramifications in defamation. 

In this case, BeautyFULL CMC Pty Ltd, which conducted a cosmetic medical clinic (BeautyFULL), and its three owners, Dr Margaret, her son Mark, who managed the clinic and her daughter Kate, a nurse in the clinic (the plaintiffs) brought a claim against a former receptionist (the defendant) for comments she made about the clinic on her Instagram stories.  

The Instagram story in question

The defendant commenced a relationship with Kate’s former husband in 2018, so it was clear that there was some personal animosity between the parties. It is against this background that the defendant made certain comments on an Instagram post of BeautyFULL, which had 19,700 followers.  The post in question consisted of photos of Dr Margaret and nurse Kate of the plaintiffs in uniform with the caption “Dr Margaret serving during COVID-19”.  

The defendant copied the photos posted to Instagram by BeautyFULL and included them in a story on her own Instagram account, which had 1,844 followers.  As part of the story, the defendant made comments claiming that BeautyFULL was lying about their claim of Dr Margaret ‘working on the frontline’ during the COVID-19 pandemic.  The Instagram story included the following comment:

“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.”

and 

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

The court’s decision

In her defence, the defendant claimed that she was telling the truth in her Instagram story – that BeautyFULL was lying about their claim that Dr Margaret was working on the ‘frontline’ as a medical practitioner in the COVID-19 pandemic.  

However, BeautyFULL never claimed in their original Instagram post that Dr Margaret was working as a medical practitioner ‘on the frontline’ treating COVID-19.  Their post simply stated, and would convey to a reasonable person, that Dr Margaret was continuing to work as a doctor during the COVID-19 pandemic, which was true.  Nevertheless, the plaintiffs were able to prove that:

1. Dr Margaret was a registered medical practitioner who actively provided medical services at the clinic;
2. Dr Margaret was working at the time of the Instagram post as a GP in a separate medical clinic providing referrals for patients for COVID-19 testing (in addition to working in the clinic);
3. Dr Margaret was publicly associated with BeautyFULL’s business; 
4. Customers of the clinic would recognise the photographs in the defendant’s Instagram stories as depicting Dr Margaret; and 
5. At the time of the clinic’s Instagram post, the COVID-19 pandemic existed in Australia.

The court therefore found that each of the defendant’s posts were intentionally false, baseless and constituted defamation of each of the plaintiffs at law, causing them distress and hurt.  It is noted that while generally, a corporation cannot be defamed, in this case, given that BeautyFULL employed less than 15 persons, it was considered ‘an excluded corporation’ which was capable of being defamed. 

The defendant was ordered to pay damages to each of the plaintiffs, in the following amounts:

1. To BeautyFULL – the sum of $20,660
2. To Mark – the sum of $20,660
3. To Kate – the sum of $12,912 
4. To Dr Margaret – the sum of $30,990

Key takeaways 

Notwithstanding:

1. the temporary nature of Instagram stories (these are only generally available to view for a period of 24 hours from posting); and 
2. the relatively modest Instagram following of both BeautyFULL and the defendant;

The court was prepared to make a finding of damages exceeding $80,000 in favour of the plaintiffs.  This is indicative of the attitude of the courts to defamation occurring in the social media space.  Even though social media may have a smaller reach and less credibility than traditional publications (television and newspapers), a single post still has the potential to cause reputational harm in defamation. 

For any advice regarding possible defamation claims on social media, please contact the team at Cronin Miller Litigation.