Pause before you post: defamation risks and social media

Posting a video on social media is quick and easy but may have unforeseen, and expensive, legal repercussions. A recent High Court decision, Bakshi v Gillis a reminder to organisations that use social media that making - or reposting - unfounded claims can lead to significant damages awards for defamation.

Key takeaways

Liability for defamation is not confined to mainstream or traditional forms of media. In this case, a TikTok video resulted in an award of damages of $150,000.
A person does not need to be named to be defamed. It is enough if the post contains sufficient detail to enable even a small number of people who know the person to identify them.
A person who reposts defamatory content through their own social media account, can be ordered to pay significant damages even where they were not the content creator.
How long content stays up and how many people see it matters. Prompt removal on request can reduce potential liability and damages.

What happened?

The claimant, Mr Bakshi, was the owner of a company operating bottle stores and hospitality businesses in Wellington and is known in the Wellington Indian community.

The first defendant, Ms Gill, posted a 10-minute TikTok video in punjabi describing an unnamed Wellington "employer" who "owns many shops - kebab shops and liquor stores too". Her video alleged that the employer exploited staff, forced an employee's girlfriend to sleep with him, bribed people, encouraged false sexual assault complaints, and treated employees as slaves.

While Mr Bakshi was not named in the video, in one section of it, Ms Gill stated “baksheya nai jaega” meaning “it won’t be forgiven”, repeated the words “Baksh Baksh Baksh” and then said “people can figure out who I’m talking about when I post the videos”. A text box at the top of the frame read “Wellington New Zealand shame on you Wellington employer …”. When a viewer posted "is his rego BAKSHI?”, Ms Gill liked the comment.

Despite a takedown request from Mr Bakshi's lawyers, the video remained live for almost three months. It received over 11,000 views, 227 likes, and 208 shares.

Prior to its removal, the second defendant, Mr Kamboj, whose employment had been terminated by Mr Bakshi's company reposted the video to his Instagram account as a “story”. It was live for around 24 hours.

Mr Bakshi sued both Ms Gill and Mr Kamboj in defamation.

What did the Court decide?

The video was defamatory

The Court agreed with Mr Bakshi that the statements at issue were clearly defamatory of the person referred to and would tend to effect his reputation adversely in a “more than minor way”.

The statements were about Mr Bakshi even though he was not named

It then went on to consider whether reasonable persons acquainted with Mr Bakshi would reasonably believe him that he was the person referred in the video, despite it not naming him directly.

The Court was satisfied that this was the case, having regard to the description of the owner of specific types of businesses in the Wellington area, the repeated reference to "Baksh" in the video, Ms Gill’s liking of the “rego BAKSHI” comment and evidence from witnesses who had recognised that Mr Bakshi was the “employer” referred to.

Reposting the video was a new publication of the defamatory statement

The Court was satisfied that the repost of Ms Gill’s defamatory video by the second defendant was a separate publication given that it came to the attention of Mr Bakshi, even though it was not possible to establish how many of his 2,315 Instagram followers had seen it.

$150,000 damages were payable

Ms Gill was ordered to pay damages of $100,000 to Mr Bakshi. The amount reflected the seriousness of the allegations, the scale of publication, the impact on Mr Bakshi and his family, and the aggravating factor that the video remained online for around three months after a takedown request.

Mr Kamboj was ordered to pay the lesser sum of $50,000, reflecting that he republished to a potentially large audience (2,315 followers), but that his repost likely lasted only around 24 hours, making him less culpable.

Practical implications

While this case involved posts by an individual in her personal capacity, its principles apply to all social media users including businesses. It is an important reminder to pause and consider the legal consequences before posting, even content intended to be light-hearted. Organisations should also ensure that social media policies and approval processes cover not only original posts, but also reposts, shares and other forms of amplification.