A retired NSW solicitor who chose to commence proceedings in the Federal Court for injury compensation over vile and abusive Facebook messages has paved the way for an additional legal remedy to deploy against the scourge of cyberbullying.
Robert Mulley received the first abusive message from Warren Hayes in January 2020. The second message a month later – to his wife – labelled him a “paedophile” and his wife a “slut”.
Both messages threatened violence to the recipients.
Mulley issued proceedings seeking damages for loss of consortium and for psychological injuries caused by the violent and offensive content the sending of which was unlawful by operation s 474.17 of the Criminal Code Act (Cth) which prohibits use of a “carriage service” to menace, harass or cause offence.
He also claimed damages for the defamatory imputations in the second message received by his wife.
It was not in dispute that Facebook Messenger is a “carriage service” because it carries “communications by means of guided and/or unguided electromagnetic energy”.
The claim came before Justice Michael Lee who noted that it was not at first glance one whose subject matter of itself brought it within the court’s jurisdiction.
His Honour noted however – in relation to the carriage service claim – that the question remained open as to whether “the law of Australia recognises tortious liability for harm caused by unlawful acts directed against an applicant”.
He concluded Mulley’s claim – although “novel” – was arguable as “a common law action on the case”.
In a hearing on the separate issue of “whether the jurisdiction of the court had been properly invoked” he considered whether such a common law claim in reliance on a federal statute meant the Federal Court had “subject-matter jurisdiction to quell the dispute”.
That answer depended in turn on whether “the rights, duties, or subject matter with which the controversy is concerned have their origin in or owe their existence to a law of the Commonwealth”.
Those questions were – in relation to the carriage service claim – both answered in the affirmative.
And even if that claim were to fail, there was “sufficient commonality” concerning the underlying facts and allegations in relation to the defamation action, to allow it to proceed in the Federal Court regardless.
On the other hand, the court would have had no jurisdiction to deal with a pure defamation claim, ie one that was unaccompanied by the separate claim relying on the breach of the federal carriage service law.
A final determination on the matter is likely to occur in early 2022.
Mulley v Hayes [2021] FCA 1111 Lee J, 13 September 2021
In further developments in the law of defamation, the High Court found media organisations who posted content relating to news stories on their public Facebook pages, they were liable for the publication of defamatory “comments” posted by third-party Facebook users in response to the content.
By a 5:2 majority, the court held that – by facilitating and encouraging the third-party comment – the media organisations “participated” in the communication of the defamatory material and were thereby publishers of it.
source https://cartercapner.com.au/blog/facebook-abuse-injury-claim-seeks-novel-carriage-service-damages/
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