The Impact of Defamation in the Age of Social Media
Australians use social media for two hours a day on average, and it has become a significant component of our daily life. It enables us to express ourselves, learn new things, and stay in touch with loved ones across the globe. Social media, however, also makes it very simple for us to express opinions and disseminate harsh and deceptive remarks, which could have costly repercussions. Although defamation laws existed before social media, there is no doubt that as social media has grown, the definition of defamation has evolved.
What is Defamation?
Defamation attempts to balance the private right to protection of reputation with the public right to freedom of speech. Defamation can be described as the spreading of information that unmistakably identifies the person or the company and makes derogatory and false claims about them. To establish a defamation case, the following elements must be addressed:
- The content must be published to at least one other party;
- The reader must be able to identify you;
- The defamatory material must be untrue;
- The defamatory content must be specific and related to you or your business; additionally, it cannot be a general remark; and
- The defamatory material must have caused or is expected to cause major injury to your reputation, including harassment, revenue losses, and loss of income. The harm caused needs to be more than just significant.
Who Can Bring a Defamation Claim?
There is an assumption that only the rich and famous may bring on a defamation claim, however, studies show it is more likely to be the average Australian who is either suing or being accused of defamation. However, for people who want to file a defamation lawsuit in court, there is a criterion. The following individuals are the only ones who may file a defamation lawsuit, and have a 12-month statute of limitations from the date the defamatory text was published:
- Individuals;
- Certain non-profit organisations; and
- Businesses with ten or fewer employees.
Examples of Social Media Defamation:
Here are some examples of social media defamation:
- Leaving fake reviews on a small business page;
- Spreading false and slanderous comments about a business or individual; and
- Sharing a video that includes any untrue comments or images.
Defences to Online Defamation:
| Defences | Description |
| Truth/ Justification | You must prove that the content of your messages is truthful and does not materially deviate from the truth. |
| Honest Opinion | You must demonstrate that the communication was an expression of your opinion (not fact), that the topic of the opinion was one of public interest, and that the opinion was supported by appropriate evidence. |
| Qualified Privilege | Certain content is legally protected, such as when it is presented as evidence in court or before a tribunal or when it is distributed to a select audience of people who genuinely care about the publication’s subject matter. |
| Innocent Dissemination | It is your responsibility to demonstrate that the published item was authored or developed by someone else and that you were not aware that it was defamatory. |
| Triviality | You must prove that the communication was trivial and unlikely to cause harm. |
Publishing Defamatory Information?
Not every expression or comment has the potential to be defamatory. Determining whether a statement is defamatory requires careful examination. If you believe your uploaded text may be defamatory, you ought to seek legal advice. you may be able to resolve the matter by offering to remove the statement and extend your apology. However, if this matter is to proceed, there are some defences for defamation law such as honest opinion or justification.
Avoiding the Risks:
Before posting or commenting on social media, you should consider the following:
- Information travels quickly, even if your account is on a private setting it is still getting viewed by one or more parties;
- If your account were to lose your account details, the published items may be on there for a prolonged period;
- Comments are difficult to retract;
- People may screenshot your posts or comments at any time;
- If the comments you are making are truthful, do you have evidence to support those claims; and
- If you are posting an opinion, ensure you are using opinion-based language.
What to do if You Have Been Defamed:
What to Do if You’ve Been Defamed: There are stringent deadlines for filing a complaint of defamation, so if you think you’ve been defamed, it’s crucial to move quickly. The defamatory content must be published within a year of the filing of this complaint. Additionally, make sure you preserve any screenshots or video recordings of the possibly defamatory content, ensuring even if the post is deleted that you have sufficient evidence for your claim.
Sending them a notice of concern under the Defamation Act’s approved format is the first step in taking legal action. The purpose of this notice of concern is to settle the disagreement without going to court. Typically, it includes a list of falsehoods, supporting documentation, defamatory content, and an opportunity to make amends, such as restitution, a formal apology, or a correction post.
The next step could be to pursue legal action if this approach is unsuccessful. This course of action should only be used depending on the severity of the harm suffered as a direct result of the defamation. This is because court processes are highly time-consuming and expensive.
Since defamation is a very complicated legal issue, we strongly advise getting legal counsel.
Real-Life Defamation Case:
Kelly v Davis [2022] NSWDC 352
University student Mr Kelly sued eight defendants for defamation but subsequently reduced the number of defendants to just two, Mr Davis, and Ms Chan. Two publications on social media are at the centre of the case. In an apparent reference to sexual predatory activity on campus, Mr Davis referred to Mr Kelly as “the local uni predator” on a Facebook page. Mr Davis originally denied identification and the imputation in his defence, but he eventually gave up on some of them. The court determined that Mr Kelly’s lawsuit against Mr Davis was unsuccessful because of imputation and a lack of identification.
In another Facebook post, Ms Chan made allegations about Mr Kelly’s alleged sexual advances on first-year students and his unauthorised presence on campus. Ms Chan originally denied identification and the imputations, but she eventually gave up on certain objections. In addition to failing for lack of identification, the court determined that two of the three imputations made by Mr Kelly against Ms Chan were defamatory. Ms Chan’s common law defence was successful despite her statutory defence of qualified privilege failing, and as a result, the court granted Mr Kelly $2,500 in general damages against Ms Chan.
