The [Not So] Social Strata Website
When trying to create strata building relations via social media goes wrong …
If major news organisations are liable for defamation via their Facebook pages, where does that leave strata buildings [and their managers] with websites, chat groups, and other member communication platforms? Is it just a strata free for all, is careful moderation required, or, do strata buildings just shut things down?
[10:50 minutes estimated reading time, 2095 words]
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Introduction
A reader alerted me to a recent High Court decision about defamation occurring via a social media site with the intriguing question: how could this decision apply in and affect strata buildings?
That’s actually a very interesting question on a topic [ie: balancing an individual’s right to say what they think against protecting others’ reputations and feelings] that’s playing out around the western [and non-western] world at the moment in many different contexts: from the ‘cancel culture’ arguments about social media bans in the USA, to free speech crackdowns in increasingly authoritarian parts of Europe, to the introduction of social credit scores in China, and, to the latest debates about rights to express, promote and share differing views about Covid 19 and related issues.
Why does defamation law matter?
So, what does this all have to do with Australian strata buildings?
Perhaps nothing? But, equally, since strata buildings are full of people with differing views but unequal power, authority, and control, perhaps it can have a lot to do with the way those differing opinions are handled.
That’s because of a few converging factors as follows.
1. Strata owners and residents have rights that are guaranteed [to a greater or lesser degree] in strata laws to see things, communicate with officials, vote and express views. So, they can always express their views and can do so in a variety of ways.
2. The individuals who run strata buildings don’t like to be questioned or criticised. After all they’re volunteers in the case of committee members, just doing their paid jobs in the case of strata or building managers, and typically know [or believe they know] more than the other strata owners or stakeholders who might disagree with them. So, they can overreact when that happens: either shutting down communications and/or provoking worse behaviour
3. Because we do not have a guaranteed right to freedom of speech in Australia [unlike many western countries that have enshrined freedom of speech into their Constitutions] and, instead, generally rely on defamation laws to limit and control unacceptable, hurtful and harmful comments. So, when one person criticises another, the remedy is usually a defamation action.
Since strata buildings and strata stakeholders can be liable for things they say within the context of strata building operations, when defamation laws expand, more people and organisations are adversely affected as to what they can say, what they can’t say, and what they’re responsible for.
So, let’s look at what’s happened to date and where things could go.
Defamation cases in strata buildings
There’s been a series of defamation cases taken in strata buildings in the last few decades [usually over rather mundane matters] over critical statements made by stakeholders. Not all of them get to hearing and judgment because they are dropped or settled.
But, the most recent reported decision on defamation in strata buildings comes from New South Wales in 2019.
It’s the decisions by the NSW District Court and the NSW Court of Appeal about a longish email sent by a residential tenant to a number of strata owners and residents about the chairperson saying that their ‘consistent attempt to shame me publicly is cowardly’ and that it was ‘offensive, harassing and menacing through the use of technology to menace me’ amongst other things. That email followed a history of issues between them about mailboxes being left unlocked, being broken into, the chairperson’s ‘campaign’ to thwart mail theft, and, disagreements over those issues.
The alleged defamations of the chairperson were as follows:
that he unreasonably harassed the tenant by consistently threatening her by email,
that he acted menacingly towards the tenant by consistently threatening her by email,
that he is a malicious person who sent threatening emails to the defendant and copied in other residents of the Watermark building for the express purpose of publicly humiliating her, and
that he is a small-minded busybody who wastes the time of fellow residents on petty items concerning the running of the building.
They strike me a fairly typical of the kinds of things many strata owners and residents say about each other from time to time when things get a bit heated between them over strata issues.
Despite that, the NSW District Court decided that all 4 defamations of the chairperson had occurred in the text of the email and were published to other strata owners without a legally valid excuse or other bases such as:
They were not true [or at least the tenant did not prove they were true] and so were not justified on that basis.
Even if they were the tenant’s honest opinions, they were mostly not couched as opinions [but rather facts], and, without establishing their truth they were not permissible.
They were not in the public interest.
They were not trivial [in the legal sense] since they included repeated use of highly charged words that the tenants should have known would cause harm.
They were not protected by the doctrine of qualified privilege [a legal principle that allows people to make otherwise defamatory statements in some limited circumstances] since the defamatory statement was not made to advance the internal strata debate about the letterboxes but rather to insult to the chairperson.
They were not a proportionate defence to any attacks made by the chairperson about the tenant’s actions.
The tenant was ordered to pay the chairperson $120,000 in damages plus costs.
However, on appeal the NSW Court of Appeal reversed the District Court’s finding that qualified privilege did not apply and rejected the defamation claim saying:
qualified privilege can apply when an appropriate ‘occasion’ exists; namely a duty or interest in the publisher to communicate in relation to the topic, and a reciprocal interest in the recipient in receiving that communication,
when qualified privilege applies, sufficiently connected comments that are reasonably made and published are permissible,
a tenant in the strata building has an interest in the management of the building [including the letterboxes] so there was a special and reciprocal interest,
even though the email may have been very personal it was not malicious [in the legal sense] and it was not proven,
because the email was only circulated to strata owners and residents and in response to the chairperson’s emails, it was a proportionate and limited response staying within the qualified privilege defence,
damages of $120,000 were excessive even if the email was defamatory when it was only circulated to 16 people.
So, the decision makes it clear that internal communications in strata buildings can be defamatory even if they are about relatively trivial matters and that the standard defences to defamation claims may not be that easy to establish.
And, whilst the NSW Court of Appeal decision widens the scope of inter strata owner and resident communications that are permissible before they trigger defamation claims, I’d still urge caution in managing strata communications since it will be easy for writers and others to stray outside these somewhat artificial and arbitrary legal boundaries.
You can read the NSW District Court decision in Raynor v Murray [2019] NSWDC 189 here and the NSW Court of Appeal decision in Murray v Raynor [2019] NSWCA 274 here.
The High Court decision
So, this latest High Court decision about defamation via social media, in this case Facebook, could have wider implications for strata buildings that have Facebook or other similar social media or communication platforms or that allow strata owners and residents to make shared comments in other ways.
Fairfax Press and News Corp published newspapers, maintain Facebook pages and post content on those pages about news articles with links to the articles. The Facebook posts provide for and invite comments by the public. After they published articles and Facebook posts about Dylan Voller, referencing his incarceration in a Northern Territory juvenile justice detention centre, a number of comments were made by the public on Facebook that were defamatory of him.
Voller sued Fairfax Press and News Corp for defamation alleging they were the publishers of those comments, Fairfax Press and News Corp disputed that since the sites were maintained by Facebook, and the High Court [after a number of lower Court decisions] had to decide who published the defamations in those circumstances.
In the simplest explanation I can possibly give, the High Court decided that Fairfax Press and News Corp had published the defamatory statements made by members of the public because:
In defamation law, it is publication that creates liability.
Publication is the process by which a defamatory statement is conveyed.
It occurred in this case by Fairfax Press and News Corp posting the news items and permitting and encouraging third party users to post comments.
Intention is not relevant, so whether Fairfax Press and News Corp or intended the defamations did not matter.
Innocent dissemination can also create liability for defamatory statements except in very limited circumstances like the accidental publication of third-party defamation.
So, in this case, because Fairfax Press and News Corp facilitated, encouraged, and thereby assisted the posting of comments by third-party Facebook users on their pages when they were defamatory Fairfax Press and News Corp were liable as publishers of those defamations [as well as the third parties].
You can read the High Court’s decision in Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27 (8 September 2021) here.
Exposed strata communication sites & what might happen
The High Court decision in the Fairfax/NewsCorp case means that where a strata building facilitates, encourages, and/or assists the posting of comments by strata owners, strata residents, or others it may be liable for anything they say that’s defamatory.
Combine that with the 2019 decision in Raynor’s case arising out of a dispute over letterbox locking and you can see the potential exposures.
That could occur in a number of places and ways including:
Any Facebook pages or site maintained by the strata building or by a strata manager of building manager on where people can make comments.
WhatsApp, Messenger, Snapchat, Signal, Tik Tok [are there any strata Tik Tok’s yet] groups created for strata building stakeholders.
Chat threads running during Zoom, MS Teams, or other virtual meeting platforms during online strata meetings.
LinkedIn pages or posts published by or for strata buildings or created by strata building service providers.
Strata-specific software platforms or apps used by strata buildings, strata managers or building managers to help with management operations that allow shared or public comments.
And, even during any live strata meetings hosted by strata buildings where strata owners, proxies, and third parties can speak and address the other attendees.
I’m not aware of any legal actions for strata defamations arising in those contexts, but it’s early days and the High Court’s extension of liability is only new.
So, what is happening and could happen to manage these risks in strata buildings?
Anecdotal comments I’ve received are that these platforms and communication channels are generally left open and unmoderated. But when there’s an incident where one member defames, abuses, insults, or criticizes another, the site is restricted, moderated for a while, and eventually, access and use is limited to announcements. Thus, effectively making the communication and interaction parts of the platforms redundant.
Another option is to moderate the platforms and comments being made. That’s what’s been happening informally at live strata meetings for decades with chairpersons, managers, and others controlling people and their comments when they start going too far. But, as we all know, people seem a lot more courageous [or is that outrageous] online than they would be in person or even on the phone. So, that solution may not work in the online world.
Rather, some kind of online moderation might be required by the platform or system administrator, the strata building or someone on their behalf backed up by rules or protocols. That’s a challenge but a new reality that everyone in social media has to deal with. For instance, Facebook provides some guidance on moderation here.
Finally, I’ve heard of some strata buildings create by-laws or rules mandating polite communications between strata owners and others to deal with similar issues as this podcast by Amanda Farmer at Your Strata Property ‘Strata managers are not punching bags’ describes.
I’m not sure that such by-laws will actually prevent defamation from occurring since they rely on goodwill and by the time the communications by law is breached it may be too late as the defamation will have already occurred. Plus, it’s hard to see how many of the restrictions on communications suggested in such by-laws could survive the tests on probatory by-laws that have been explained in Cooper’s Case [see my article ‘The Dogs of Strata War or The By-Law is Dead: Long Live the By-Law’].
Conclusions
Strata buildings are ripe for defamatory comments. But, up till now, they’ve been limited by politeness and most peoples’ preference to avoid face-to-face confrontations.
However, the move by strata buildings to online tools and platforms for communications that allow more comments without those constraints and no management, increases the likelihood for more defamatory comments. Plus, the cases suggest that more minor and personal slights are actionable in strata buildings and as the hosts of those tools and platforms, strata building will be liable for publishing them.
So, is the strata building social media site potentially a not-so-social place for strata stakeholders that leads to unexpected exposure and liability without management? And should strata buildings just let large social media organisations provide outside platforms for strata people to engage with each other informally and organically.
September 13, 2021
Francesco ...