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The Dangers of Social Media: Jensen v Nationwide News Pty Ltd

6 December, 2019

The decision of Chief Justice Quinlan in Jensen v Nationwide News Pty Ltd [No 12] [2019] WASC 250 has provided a timely reminder of the dangers that posting on public social media forums can have, and pose, in civil litigation.

Background

Dr Dennis Jensen (“Dr Jensen”), former Federal Member for Tangney, commenced an action against Nationwide News Pty Ltd (“Nationwide News”) based upon two articles published by journalist Andrew Burrell in The Australian newspaper in 2016. The articles, which centred upon Dr Jensen’s marriage breakdown and 2007 published novel entitled “The Skywarriors”, were alleged to contain defamatory imputations including but not limited to Dr Jensen being a ‘purveyor of smut’.

Following several interlocutory hearings, the trial was heard before Chief Justice Quinlan in May 2019. The primary issues at trial were the defences pleaded by Nationwide News to Dr Jensen’s claim, and the theoretical assessment of damages payable to Dr Jensen were the articles held to be defamatory. The Chief Justice at the conclusion of trial reserved his decision in relation to all issues.

Social Media Post

On 3 July 2019, Nationwide News applied to the Court to have the trial reopened in order for Dr Jensen to give evidence in relation to a “Facebook” post which he had made to a friend on the day following the conclusion of trial.

The relevant section of the post in question read:

Have finally managed to secure work through a contact of mine from nearly 40 years ago.[1]

Nationwide News submitted that this post was of relevance to both the question of Dr Jensen’s prospects of employment following the publication of the alleged defamatory articles, and the theoretical assessment of damages payable to him.

It was argued that the insinuation that Dr Jensen was able to obtain employment warranted the re-opening of the trial. Nationwide News argued Dr Jensen was required to be cross-examined in relation to the post as well as his prior evidence at trial in relation to his attempts to find employment, and credibility generally.[2] 

Dr Jensen opposed the application of Nationwide News to reopen trial. In support of this opposition, Dr Jensen swore an affidavit stating that at the time of making the Facebook post he did not in fact have confirmation he had secured work, had received no income, and had received no assurance that if the contact was in fact able to provide employment, of when such possible employment might commence.[3]

Court Decision

Ultimately, having considered the submissions of the parties, Chief Justice Quinlan held it to be in the interests of justice to allow the defendants application, and thus to reopen the trial, albeit for the limited purpose of cross-examination in relation to the Facebook post.[4]

In summary, His Honour’s decision to reopen trial was based upon:

1.    the decision and reasons of the initial trial not having been given, and remaining reserved in relation to all issues;

2.    that given the date the Facebook post was made, it could not have been known by Nationwide News at the time of trial; and

3.    the limited nature of the cross-examination proposed by Nationwide News meaning, as a matter of practicality, the matter could be dealt with relatively quickly.

Key takeaways

This decision provides a timely reminder that social media platforms such as Facebook are both public forums, whose use can have ramifications in litigation. This important reminder to both clients and practitioners alike gives credence to the proposition that if you do not want your Facebook posts on the front of the West Australian newspaper, do not post them.

If you would like to read more about defamation, please follow this link. 

If you require advice or assistance in relation to a matter involving defamation – please follow the link below.

 

[1] Nationwide News Pty Ltd v Jensen [No 12] [2019] WASC 250 [3].

[2] Nationwide News Pty Ltd v Jensen [No 12] [2019] WASC 250 [17].

[3] Nationwide News Pty Ltd v Jensen [No 12] [2019] WASC 250 [20].

[4] Nationwide News Pty Ltd v Jensen [No 12] [2019] WASC 250 [26].

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