From scathing reviews of hairdressers to online trolling and keyboard warriors — social media is awash with defamatory content.
The instantaneousness and ease at which comments can be spread to a wide audience means that social media is a particularly dangerous medium for the publication of defamatory matter.
A post on your wall, a comment in a group chat, sharing a post or even tagging a friend in a dodgy meme could all potentially land you in court answering a defamation claim.
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).
Who can be defamed?
First up, who can actually bring a claim in defamation?
The fundamental purpose of the law of defamation is to protect a person’s reputation. Where the courts have determined that a person (natural or artificial, such as a corporation) doesn’t have a reputation to protect, or that potential damage to their reputation doesn’t outweigh other considerations (for example, the freedom of political speech), then the person won’t be able to bring a claim in defamation.
The main exemptions are:
A: The dead can’t be defamed
A defamation claim can’t be started or continued if it relates to a publication about someone who is now dead.
B: Certain corporations can’t be defamed
A corporation can’t bring a defamation claim unless it was an “excluded corporation” at the time of the publication. Put briefly, an excluded corporation is:
- a not-for-profit organisation; or
- a corporation that employs fewer than 10 people and isn’t related to another company; and
- isn’t a public body (such as a local government body).
C: An elected government body can’t be defamed
Elected and representative government bodies (for example, local councils) can’t bring a defamation claim. The courts say this is a result of our democratic society which requires that everyone be free to criticise their elected government, even where those criticisms are misguided.
Elements of a defamation claim
Next, let’s look at what it takes to mount a defamation claim.
To be successful in a claim, you need to prove that:
- there has been a matter published by someone (publication);
- the matter identifies or is “of and concerning” you (identification); and
- the matter is defamatory of you (defamatory content).
Generally, publication is a straight-forward element to prove, however, certain practices in social media (like sharing posts, hyperlinking articles and tagging friends) have required the courts to adapt and expand the basic idea of publication.
Defamation legislation doesn’t define the term “publication” and so the common law definition applies – a publication is the communication, by whatever means, of a defamatory meaning to a person other than the person complaining. Publication can occur through any means of communication. In a social media context, words in a post, uploading images or even using emojis could amount to the publication of defamatory meaning.
The definition of who is a “publisher” for the purpose of defamation law goes beyond those who create the offending material. It includes anyone who voluntarily participates in spreading the defamatory matter. So sharing a post on Facebook or retweeting a tweet could render the user who shared the post equally liable for any defamatory matter in the original post.
To establish that a publication is “of and concerning” you, you need to show that either:
- it mentions you by name or title; or
- you could be identified by people who read the publication and know some other relevant facts at the time of the publication (for example, the post mentions “the guy that drives the blue Ford” and people reading the post know what car you drive and therefore knows the post refers to you).
It’s irrelevant whether or not the publisher intended to refer to you, or whether they even know you at all!
Proving the publication is defamatory is a two-fold task. Firstly, you need to establish the “imputations” that you say are conveyed by the publication. That is, the act or condition attributed to you as a result of the publication. For example, a Facebook post could be read as imputing you are untrustworthy, unprofessional or that you engaged in some illegal or dishonest behaviour.
Next, you must establish that those imputations are in fact defamatory in the eyes of an ordinary and reasonable member of society. Who’s an ordinary member of society? Just the average Joe Bloggs — someone ‘of fair, average intelligence, neither perverse… nor suspicious of mind… nor avid for scandal’.
There’s no clear definition of what’s defamatory. However, the usual tests applied are that a publication will be defamatory if it:
- disparages your reputation — that is, it causes ordinary members of society to think less of you;
- causes other to shun, avoid or exclude you; or
- subjects you to hatred, ridicule or contempt.
Whether or not the wrongdoer intended to convey the defamatory meaning is irrelevant.
The question is largely one of impression — what’s the impression, or the gist, of the publication to an ordinary reader?
Don’t let a comment land you in court — be mindful of what you post or share online! And if you think you’ve been defamed online, give us a call, we can help.
For more information contact: