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Defamation in the digital age – be careful what you write or like on social media and online!

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Attwood Marshall Lawyers Commercial Litigation Senior Associate, Jade Carlson, joins Robyn Hyland on Radio 4CRB to discuss defamation.

Defamation – it’s an ever-changing issue

Most people are familiar with defamation in its traditional sense (i.e. a statement harming a person’s reputation either written or verbal, usually in a newspaper or on TV or radio), however there continues to be a lack of awareness around what constitutes defamation in the digital age, and particularly on social media forums.

With 59 per cent of the world’s population using social media, there is an abundance of communication and interaction in the online world.

Meta’s product range, including Instagram, Facebook, WhatsApp, and Messenger, sees 3.74 billion monthly active users accessing these platforms. 

Things published online are generally treated the same as any other type of publication when looking at defamatory material.

Separate to social is the world of reviews. With 93 per cent of people stating that online reviews play a big part in consumer behaviour and buying decisions, we all know how important online reviews can be for a business. Platforms such as Google, Tripadvisor, Yelp and Facebook all provide consumers with the opportunity to share their reviews.

It is often following a bad review that defamation disputes can arise.

It’s important for people to understand that they can be held liable for what they post, comment on, or even review, in public online places. 

Some courts have even held that ‘liking’, ‘re-tweeting’, or ‘sharing’ someone else’s content can be viewed as a republication of defamatory content, that is you saying it yourself, and if you say the wrong thing or republish defamatory material, you may find yourself being served with a Concerns Notice under the Defamation Act or confronted with a claim for defamation.

Defining “defamation”

In its simplest form, defamation is the publication of material which harms a person’s reputation.

To succeed in an action for defamation, the aggrieved person (or plaintiff) must prove, among other things, that:

    • The material has been published to a third party;
    • The material clearly identifies and is about the aggrieved person; and
    • The material published contains defamatory imputations about the aggrieved person, which are untrue.

    If the above elements are proven in court, and there is no arguable defence, then the court may make an award of damages. In the case of general damages, the court will seek to award damages proportionate to the harm caused to the plaintiff’s reputation.

    Understanding defamation

    It is important to keep in mind that it is the effect of what is said (that is imputations carried) that is defamatory, rather than what is exactly said.

    For example, John Doe engages Stephen Smith to undertake some plumbing work on his property.  Stephen Smith charges more than initially anticipated because the work required to be undertaken has expanded.  John Doe decides to write a review on Google, stating “Stephen Smith is a lousy plumber and crook”.  Stephen Smith might allege that the post contained imputations that he is incompetent, dishonest and a fraudster, which are untrue and therefore defamatory.

    Unintentional defamation

    Even if you did not have malicious intent to defame someone or hurt their reputation and unintentionally said something that could be perceived as defamatory, you can still be held liable. If you are found to have defamed another person, whether you intended to or not, you may be ordered to pay:

      • general damages (or non-economic loss) which is capped at $250,000 for a person’s distress and hurt caused by the publication; and
      • special damages (or economic loss) for harm to a personal business reputation; and
      • aggravated damages, where the court considers the publisher, published the defamatory material in a reckless disregard for the harm caused to the aggrieved.

      The court will look at what was published or communicated about the other person, and how a reasonable member of the community would interpret that information.

      Elements required to prove that something is “defamatory”

      There are three main elements that must be satisfied to be successful in a defamation claim, including:

        1. the identification of the aggrieved person
        2. publication of defamatory imputation
        3. communication to a third party

        There is also a serious harm element, which came into effect in July 2021, now requiring the plaintiff to prove that the defamatory material caused, or is likely to cause, serious harm to the reputation of the plaintiff.   The serious harm element provisions found in section 10A of the Defamation Act 2005, was introduced to combat the concerns that defamation law is increasingly being used for trivial, spurious and vexatious backyard claims and that the costs and stress of defending a defamation claim can be prohibitive to private individuals.  

        A recent case

        The NSW Supreme Court in  Newman v Whittington [2022] NSWSC 249 (Newman) gave judicial consideration to the “serious harm” provisions for the first time after the legislation was introduced.   

        In that case, Ms Newman commenced defamation proceedings against Mr Whittington alleging that he posted 27 defamatory imputations about her online, mainly on Facebook. As some of the alleged posts were made after 1 July 2021, after the Stage 1 Reforms were enacted, Ms Newman needed to satisfy the “serious harm” threshold in respect of those posts.

        In short, His Honour found that it is necessary for the plaintiff to adduce facts evidencing actual harm caused, or likely to be caused, to be considered by the court to assess the likelihood of the harm. 

        The Queensland Courts are yet to hand down a decision that deals with section 10A of the Defamation Act, and it will be interesting to see how the court will interpret ‘serious harm’ and whether this will put an unnecessary burden on the plaintiff to show actual loss.

        How a defamation lawyer can help

        If you are an aggrieved person and you think that someone has published defamatory material about you, a defamation lawyer can advise you and help you prepare and send a Concerns Notice to the publisher seeking that publisher to withdraw the publication, provide undertakings not to publish material similar or defamatory to you in the future and make an offer to pay your legal fees and compensation. 

        It is now a requirement for a plaintiff to serve a Concerns Notice before the plaintiff can commence proceedings.  If the material was published on Google or Facebook, then your defamation lawyer may also seek instructions to send a notice to Google or Facebook as to your claim and seek the material be removed.

        If you are a recipient of a Concerns Notice, a defamation lawyer may advise you to respond to the aggrieved person by making an offer to make amends in accordance with the Defamation Act, which would include offering to remove the defamatory material and paying the aggrieved persons reasonable legal costs.

        If you are the aggrieved person and the damage to your reputation is minimal, and the recipient makes a reasonable offer to make amends, the most appropriate advice may be to accept that offer and avoid commencing legal proceedings and incurring legal fees.

        There are not two matters that are the same when it comes to defamation, so it is important to get independent legal advice about your specific circumstances to understand the best course of action to take.

        Accused of defamation? What defence may be available to you

        Each case is considered on its own facts and merit, but generally, there are 8 different defences someone can use if they have been accused of defamation.

        These include:

          • justification, where someone argues that the statement made is substantially true.
          • contextual truth – where the defendant proves that the matter carried one or more imputations that are substantially true and any defamatory imputations of which the plaintiff complains are not contextual imputations and do not further harm the reputation of the plaintiff;
          • absolute privilege – where the statement was made in a place where the law says anything goes, for example, in Parliament or in a court. In these environments, you cannot legally sue someone for what they say about you;
          • where a statement was taken from a public document, such as government document, and has been repeated;
          • a fair report of an important public proceeding, such as a court case;
          • matters concerning publication of an issue of public interest – where the defendant believes that the publication of the matter was in the interest of the public.
          • where a defendant has made an offer to make amends in accordance with the defamation Act but it was not accepted by the plaintiff; 
          • if the person you are suing wasn’t the primary distributor of the statement. For example, suing Google over a negative Google review a patron left a business. Google may argue “innocent dissemination” – although we have seen over the past couple of years where this has been quickly dismissed by a court.

          Administrators of social media pages are liable

          Two years ago, a NSW Court held Fairfax Media Publications, Nationwide News Pty Ltd, and Australian News Channel Pty Ltd liable for comments that were made on a news article they shared on their Facebook page. The comments were made by the public, however, the person who featured in the news story went on to commence defamation proceedings against the publishers claiming that particular comments posted by third parties conveyed imputations that were defamatory of him, and that the news publishers were liable as publishers of the third-party comments.

          In this case, the NSW Court determined that;
          “A person who participates in and is instrumental in bringing about the publication of defamatory matter is potentially liable for having done so notwithstanding that others may have participated in that publication in different degrees.”

          This case shows that the Courts can and will hold administrators of social media pages liable as “publishers” of comments posted on their pages by members of the public.

          Anyone who is running a business or responsible for such online pages should be vigilant and make sure they have the appropriate processes in place to monitor and moderate comments in this space.

          Attwood Marshall Lawyers – Experienced defamation lawyers helping to protect your reputation

          Attwood Marshall Lawyers has a dedicated team of Commercial Litigation lawyers who practice exclusively in this complex area of law. We can assist with all defamation matters to help you protect your personal and professional reputation.

          Contact our team to find out what action you can take by calling our Department Manager Amanda Heather on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071.

          Our defamation lawyers are available for appointments at all our conveniently located offices at Robina Town Centre, Coolangatta, Kingscliff, Brisbane, Sydney, and Melbourne.

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          Jade Carlson graduated with a Bachelor of Laws (with Honours) and Bachelor of Business from Griffith University in 2012. After completing her Practical Legal Training through the College of Law, she was admitted to the Queensland Supreme Court in 2013 and to the High Court of Australia in 2016.

          Jade Carlson

          Senior Associate
          Commercial Litigation

          Contact the author

          Disclaimer
          The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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