When does a comment online cross the line? Part 2

When does a comment online cross the line? Part 2

Our previous eBrief looked at when a social media post might defame someone. Now let’s flip the coin — how can you defend yourself if you’ve been accused of defaming someone online?

Social media encourages participants to communicate in an instant, flippant and often attention seeking manner, with posts able to be republished and endorsed with the click of a button. These traits might add to the fun of engaging in social media, but they also drastically increase the potential to defame another person online.

In 2006 each Australian State and Territory enacted uniform defamation legislation — in the ACT it’s found in Chapter 9 of the Civil Law (Wrongs) Act 2002 (ACT) (‘the Act’).

There are various defences you could employ to try to beat a defamation claim. Some defences are found in the Act while others have been developed by the courts over time. The two most relevant defences in a social media context are justification (also known as the truth defence) and honest opinion.

Defence of justification

As they say, the truth shall set you free!

When pleading a defamation claim, the person complaining about the alleged defamatory publication (‘the claimant’) must (amongst other things) specify the ‘imputations’ they say are conveyed by the publication.

An imputation is an act or condition attributed to the complainant as a result of the publication. Examples of imputations could be that the complainant acted illegally or immorally, was engaged in some scandalous behaviour, or was unqualified or unprofessional.

You’ll have a complete defence to a defamation claim if you’re able to establish the substantial truth of the imputations which the complainant says are carried by your publication. The principle behind this defence is that there can be no damage to someone’s reputation by telling the truth about them.1

In practice, establishing the truth of a matter may be difficult. Consider a situation where you have published information that was told to you in confidence or where you can no longer access the document or thing on which you based your publication. You may not be able to access the evidence you require to prove the truth of the imputations in dispute.

Similarly, getting to the actual truth of a matter can be difficult. In a recent decision of the ACT Civil and Administrative Tribunal concerning a publication of defamatory material on Facebook, the respondent (alleged defamer) sought to establish the defence of justification by tendering to the Tribunal 117 separate URL addresses where material similar to the publication complained of were also published.

Senior Member Donoghue SC held that none of the material tendered in support of the respondent’s defence of justification actually related to the truth of the material or imputations, rather it expressed opinions and repeated opinions relevant to the material.2 As Senior Member Donoghue stated:

The mere fact that something is repeated or replicated by some or many different people in some or many different forums using different modes of publication does not go to the truth of the material or truth the defamatory imputations that may be contained in it. A falsehood, no matter how many times it may be repeated, remains a falsehood.3

The evidence required to establish the defence of justification must prove the truth of the imputations alleged to be carried by the material complained of.

On top of this, the courts have strict rules about what they’ll accept as evidence and how you must present your evidence. Care must be taken to ensure the evidence you want to present to prove the truth of the material complained of is actually received and considered by the court.

So the truth can set you free, so long as you can prove it in court with admissible evidence.

Defence of honest opinion

Where the defamatory publication complained of was an expression of your (or your employee’s or agent’s) opinion, then you may have recourse to the defence of honest opinion. The defence of honest opinion is aimed at protecting freedom of speech and free expression of opinion.4

You’ll have a defence to a defamation claim if you can prove that what you said or wrote was your honest opinion and was based on proper material.

This defence requires you to prove that:

  • the publication was expressed as an opinion (being your opinion, or your employee’s or agent’s opinion), rather than a statement of fact,
  • the opinion related to a matter of public interest; and
  • the opinion was based on proper material, ie material that’s true or is a public document or report of proceedings of public concern (such as court proceedings or parliamentary proceedings).

If you’re accused of defaming someone online, seek out advice early as there are defences that might be available to you to combat a claim and clear your name.


Please feel free to contact us for more information and advice

Bernice Ellis  Partner Commercial Dispute Resolution
(02) 6279 4385
bernice.ellis@mvlawyers.com.au

Greg Brackenreg  Special Counsel Commercial Dispute Resolution
(02) 6279 4409
greg.brackenreg@mvlawyers.com.au

Justine Denman  Associate Commercial Dispute Resolution
(02) 6279 4400
Justine.Denman@MVLawyers.com.au


1 Rofe v Smith’s Newspapers Ltd (1924) 25 SR (NSW) 4, 21-2.
2 Bottrill v Bailey [2018] ACAT 45, [145]-[147].
3 Ibid, [148].
4 Orr v Isles [1965] NSWR