In brief

Defamatory posts on Facebook about a McDonalds’ owner has resulted in the person who posted them coughing up $200,000 in damages after a recent decision of the Victorian Supreme Court[1].

Take home points

  • Do not ignore legal proceedings – the Defendant failed to file a defence and a judgment was made in default of defence (without a trial). The Court then had to hear evidence to determine the award of damages.
  • You do not need to name the person in your post – if they can be identified (in this case “the owner of the local McDonalds”) this is sufficient for defamation laws to apply.

Posts

The posts were written on a Facebook page entitled “Everything Albury Wodonga” (EAW page) and the judgement[2]included the following quotations of the Facebook posts

[9] “I would like to hear from anyone who has ever had bad experiences with the owner of the local McDonald’s (not the homemakers owner). For legal reasons I cannot name the owner but if you have ever worked for this person you will know who I am talking about.

 I would like to hear from you if you have ever been unfairly treated, threatened, abused etc.

There are a lot of people out there that have been mistreated…”

[11] “…If you don’t speak up then this person will continue to abuse their power and make people feel worthless.”

[13] “…At this point I have had around 30 people message me with complaints ranging from physical assault to unhygienic food safety…”

[17] “It is hoping to achieve a class action against the owners. If head office don’t want to listen I’m sure Fairwork Australia will.”

[19] “… These people will try anything to intimidate you and undermine you. For the sake of your job take a witness with you to any discussion.”

[23] “This is just one of the 40 plus stories I have been sent so far.”

The Court then outlines the allegations made by the Defendant in this post at [23] as follows:

(a) the employee was made a manager after two weeks because all the managers kept leaving;

(b) she was only paid for 40 hours a week despite working nearly 60 hours a week;

(c) she was constantly harassed by Ms Cables (the owner) and the supervisor for being a ‘shit manager’;

(d) she was physically pushed into the cashier booth by Ms Cables;

(e) she was told she was too lazy and not smart enough;

(f) she was never given a break so could not eat or go to the toilet during a 10 hour shift;

(g) she lost 10-15 kilograms whilst working there;

(h) she was screamed at daily and told she should quit because she was useless but was also told she had potential and would be given harder shifts;

(i) her physical and mental health suffered dramatically and working there worsened her pre-existing depression, requiring her to take more antidepressants and tablets for iron deficiency;

(j) working there made her suicidal;

(k) she was scared and sick every time she thought about going to work; and

(l) Ms Cables had no respect for anyone, only cared about making money, and needed to be removed.”

The Court

As there was already a default judgment, the Court was simply looking at an assessment of the damages which was undefended.

In awarding $200,000 in damages, the Court considered the following (amongst other matters):

  • The EAW page was published to at least 9510 people who “liked” the page and 9477 people who followed the page. More people also may have seen the site as it was publically available.
  • There is often a “grapevine” effect whereby it is likely that the impact of the posts will spread beyond those people who saw the web page.
  • Albury-Wodonga is a relatively small community and the impact of the “grapevine effect” may be significant.
  • The webpage was brought to the attention of McDonalds HQ who conducted an investigation. Despite threatening to issue breach notices pursuant to the Fair Work Act 2009 and the enterprise agreement, McDonalds never issued any breach notices.
  • There was a huge impact on Ms Cable’s reputation.

Comment

Truth is an absolute defence to defamation and can be powerful in these types of cases.

As the defendant in this case was not legally represented and did not defend the claim, the truth defence was not tested in this case.

This case highlights the need to act quickly if you receive legal proceedings and seek the appropriate advice. Failing to do so can result in a default judgment and potentially a large award of damages.

 

[1] Cables v Winchester [2018] VSC 392

[2] Not all of the posts outlined in the judgment are extracted in this article

About the Author

Catherine Ballantyne

Special Counsel
A business disputes specialist, Catherine is a trusted advisor to businesses and individuals in obtaining successful outcomes. Businesses rely on Catherine as a trusted advisor as well as lawyer in guiding them through complex litigation and disputes.

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