Kenneth Rothe enjoyed life as a successful and well-respected member of the Nambucca heads community, a scenic town located on the mid north coast of New South Wales.
He ran a local business called the Blue Dolphin Motel, spent decades as a high school teacher and even held an important position in the Chamber of Commerce.
But in March 2014, Mr Rothe’s good reputation, developed over 72 years of life, was tarnished by electrician David Scott. The consequences for Mr Rothe were devastating.
Mr Scott posted on Facebook that the Blue Dolphin Motel had been used as a relocation site for paedophiles to live. Rothe begged Scott to remove this post on the basis that it was wholly untrue. Mr Scott refused.
As a result of the post, Mr Rothe was subjected to threatening and harassing phone calls at the Motel, with some callers anonymously asking for sex. However, this conduct was minor compared to what was to come.
After being subjected to a sustained campaign of threats, the upstanding community man was brutally bashed leaving him hospitalised for six months. His family were so terrified at the prospect of further abuse they moved interstate.
The confusion surrounding the Motel seems to have arisen due to a long-standing arrangement with the Department of Community Services, whereby the Motel would provide crisis accommodation for individuals requiring shelter. Mr Scott incorrectly assumed that paedophiles, and those previously convicted of crimes, would be staying at the motel.
In fact, Mr Rothe made sure those convicted of crimes, including sex offenders, would never be housed in his Motel. Quite to the contrary, the accommodation was primarily for victims fleeing domestic violence.
Having suffered immensely, both physically and emotionally, Mr Rothe was left with no choice but to commence court proceedings.
In the NSW District Court, Judge Gibson found:
“There is no evidence before the Court that the Plaintiff is anything other than an upstanding member of the community who has never been investigated, let alone charged, for any criminal conduct”.
The post was found to be defamatory and Mr Scott was ordered to pay Mr Rothe $150,000.
The judgment adds to a string of recent cases which confirm that Facebook posts can lead to damages for defamation. The Court in Mr Rothe’s case noted that:
“The anonymity, instantaneousness and wide-ranging reach of the internet and social media make it a dangerous tool in the hands of persons who see themselves as caped crusaders or whistle-blowers, or alternatively want to humiliate or “troll” other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention”.
In another case, a woman was ordered to pay her former husband $12,500 after she posted on Facebook that she was separating “after 18 years of suffering domestic violence and abuse”.
Another defamatory Facebook post cost one Scotland Island resident $80,000.
Can the Use of Facebook Constitute a Criminal Offence?
Not only can conduct on Facebook be expensive, it can also be potentially criminal.
474.17 of the Commonwealth Criminal Code contains the offence of ‘using carriage service to menace, harass or cause offence’, which says:
A person is guilty of an offence if:
a) The person uses a carriage service; and
b) The person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.
This offence carries a maximum penalty of three years imprisonment.
Sydney man Ronnie Usmanov learnt about this law the hard way after being sentenced to six months behind bars for distributing naked photos of his ex-girlfriend on Facebook.
In sentencing, Magistrate Deputy Chief Magistrate Jane Mottley shared similar views to Justice Gibson, finding that Facebook’s instant access can cause huge damage:
“New-age technology through Facebook gives instant access to the world. Facebook as a social networking site has limited boundaries. Incalculable damage can be done to a person’s reputation by the irresponsible posting of information through that medium. With its popularity and potential for real harm, there is a genuine need to ensure the use of this medium to commit offences of this type is deterred”.
The lesson is clear – social media users should think twice before publishing threats or defamatory material online, as such actions can carry both civil and criminal consequences.
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