Author: Sarah Russell

Social Media and Defamation

During the coronavirus lockdown, many of us are spending more time on social media. It is a golden era for lawyers to scroll though Facebook and Twitter looking for even the most mildly offensive comments.

Suing people for making ‘defamatory’ comments on Facebook is becoming an industry. While some lawyers chase car accidents, others chase social media posts. Those of us who are sued are often advised to pay ‘go away money’ rather than go to court. It is difficult therefore to gauge the size of this industry.

Australia’s defamation laws were written long before we all had access to social media. They were written with public figures and newspapers in mind. Defamation was once considered solely the domain of rich public figures. Although public figures continue to sue media organisations, private individuals are increasingly turning to defamation laws as a way of being vindictive.

Using the legal system to protest against offensive comments on social media was never the intention of defamation law. None the less, our defamation laws currently treat a Facebook post that is read by a handful of people the same as if the comments were published in a national newspaper.

Recently, a woman was ordered to pay $35,000 in damages after posting in a neighbourhood Facebook group that a member was “intimidating, bullying and threatening” women in the group. The plaintiff alleged that this Facebook post had “totally damaged” his credibility.

Federal Attorney General Christian Porter has described these types of social media cases as “neighbourhood disputes”: “There’s a balance there to be struck between people having the right to defend their reputation, but not clogging up the courts with stuff where there isn’t any actual, realistic, quantifiable damage to a reputation done simply because something was said in a neighbourhood dispute which was mean-spirited amongst neighbours.”

The regular Twitter “pile ons”, ad hominem tweets and personal attacks that are made on Facebook pages suggest that many people posting comments on social media are unaware of the possibility of being sued for defamation. Even an innocent mistake, like the one I made, can cost a significant amount of money.

I am a public health researcher and aged care advocate. I have published several research reports about aged care and had numerous opinion pieces published about systemic issues within the sector. I also administer the Aged Care Advocacy Facebook Group, which has become a go to page for older people and families wanting advice from other members on how to tackle problems.

In recent years, some people who claim to be aged care advocates have engaged in bullying online behaviour. They use social media in an attempt to destroy the reputations of people working in the aged care sector. Some focus their ad hominem attacks primarily on providers. Others attack anyone working in the aged care sector, including aged care advocates.

Social media has enabled a small group of women to play havoc with many people’s lives. Unfortunately, Facebook turns a blind eye to those whose relentless online abuse has caused depression and other mental health issues, including suicidal ideation.

After I exposed the abusive online behaviour of some of these aged care advocates, I then became their target. The abuse against me began with a silly direct message comparing my meetings with aged care providers to “having lunch with George Pell”. It later escalated to vulgar, bullying and harassing posts. The abuse was relentless, and included a large number of uninvited posts on my personal Facebook page.

My strategy was to ignore, delete, block. However, this was difficult because these people use many different Facebook identities such as Kirri Billi, Netty Elizabeth, Marilyn Munroo and Tess Tickle.

I did not read their posts. Instead, I deleted them and blocked the accounts. I later responded with a Facebook post that was intended to name and shame. In this post, I referred to those who had posted on my personal Facebook page as “trolls”, unaware that one of the identities was the name of a real person.

I was subsequently sued for defamation. The plaintiff claimed $100,000 in damages. While I now appreciate how easy it is to satisfy the legal criteria for defamation in Australia, it remains unclear to me what actual reputational harm my post caused. Did it cause the person to lose respect within her community? Her job? Her income?

Rather than sue for hurt feelings from a Facebook post, a person should be required to show serious harm to warrant defamation action. In the first Twitter defamation case in Australia to proceed to a full trial, a judge found a former student’s posts about a school music teacher were untrue. More recently, a registered nurse sued after Facebook posts falsely claimed malpractice by the nurse and that the nurse was drinking on duty. In both these cases, the social media posts caused serious harm by damaging professional reputations.

The federal Attorney General has indicated an overhaul of defamation law that will require plaintiffs to demonstrate serious harm. Damaging professional reputations is serious; hurt feelings are not. An overhaul of the law would make it more difficult for vindictive “neighbourhood disputes” to go to court.

I did not drag my case though the courts and instead settled the case quickly. There’s no suggestion that the particular lawyer involved in my case scrolled through Facebook for the post, but I was nevertheless left wondering how much the lawyer was paid.

First published in Online Opinion 2 June 2020

 

Ignoring an advance care directive

Recently, a 94-year-old woman was resuscitated in an aged care home despite having an advanced care plan stipulating Do Not Resuscitate. The family watched their mother and grandmother die a slow and seemingly painful death in a hospital palliative care unit, rather than die peacefully after breakfast.

Despite numerous attempts to find out exactly what happened, a month later the daughter still did not know why/how/who resuscitated her mother.

The quest for information began two days after her mother was transferred to hospital. The manager of the aged care home phoned. He said to the daughter: “I heard your mum got resussed on Saturday”. This was the first time the daughter was told her mother had been resuscitated.

How did a woman with an Advanced Care Plan that clearly stated Do Not Resuscitate get resuscitated?

During a time when the daughter should be grieving, she instead tried to get information. Who made the decision to resuscitate her mother? Where was she resuscitated (in the lounge room or in her bedroom)? What did her doctor advise the staff to do? What did the Ambulance Victoria advise over the phone?

She phoned the aged care home’s head office. She left voice messages that were not returned. She sent emails that were not answered. Eventually she spoke with the District Manager who undertook to investigate what happened.

Aged care homes need to prepare themselves for open disclosure. Standard 6 of the new Aged Care Quality Standards states: “Appropriate action is taken in response to complaints and an open disclosure process is used when things go wrong”.

By the time the daughter contacted me, she had heard several different versions of the event. The Manager of the aged care home, the District Manager, the hospital doctors, the aged care home’s progress notes all provide different accounts about what happened that Saturday morning.

The daughter was so frustrated she was ready to tell her story to the media.

Instead, I suggested she lodge a complaint with the Aged Care Quality and Safety Commission and sought advice from Elders Rights Advocacy. I also suggested she requested an urgent face-to-face meeting with the District Manager.

The District Manager agreed to a meeting. She asked an employee of Elders Rights Advocacy to accompany her as a support person. However, this is not a service Elder Rights Advocacy provides after a resident has died.

I contacted the CEO, OPAN to ask where someone in her position should go for help. Although the National Aged Care Advocacy Framework focuses on the older person, the framework has recently been expanded to include families or representatives.

I agreed to be the support person in the meeting with the District Manager. Unfortunately, an hour before it was scheduled, the daughter received a phone call to inform her that the meeting had been cancelled. There were unforeseeable circumstances.

To prevent this escalating, I immediately phoned the aged care company. I left a message explaining the importance of the CEO returning my call. I did not feel confident that he would.

Much to my relief, the CEO phoned back. I told him the daughter simply wanted a factual explanation of what had occurred, a genuine apology and to know what steps have been taken to prevent its recurrence. She wanted ‘open disclosure.’

I arranged a meeting so the daughter could hear the truth about what happened to her mother. A month after her mother was resuscitated in an aged care home, the daughter now has a time-line to show exactly what happened. She also received a heart-felt apology. During the meeting, we discussed ways to prevent a similar tragedy.

This incident demonstrates an urgent need for aged care homes to have policies to ensure residents are not resuscitated against their wishes. Residents and their families are encouraged to make advanced directives to state their wishes for end-of-life medical care. These advanced directives are meaningless unless health care professionals respect an older person’s wishes.

Aged care homes must ensure direct care staff on each shift know which residents are, and are not, for resuscitation. Each handover sheet should identify residents who have documented Do Not Resuscitate in their advance care plan. This is particularly important for agency staff.

I once arrived at an aged care home to find a fire truck, 2 Mobile Intensive Care Unit Ambulances (MICA), a paramedic motorcycle and an ordinary ambulance. All these flashing lights heralded the death of a 94-year-old resident. This may suggest that Ambulance Victoria needs some education when they receive a 000 call from an aged care home.

A doctor once told his colleagues that, when he reached a certain age, he would have “NOT FOR RESUSCITATION” tattooed on his chest. This would undoubtedly guarantee his wishes were respected.

Currently, residents in aged care home must ‘opt out’ of resuscitation. They do this by indicating Not for Resuscitation in their advanced care plan and advanced care directive. It may be better to make cardiopulmonary resuscitation an “opt in” for residents in all aged care homes. Only those residents who choose to be resuscitated will be. Others will be allowed a dignified death.