Social Media Defamation: What to Look Out For

Article by Jason Papoutsis, Litigation Lawyer

As defamation lawsuits in relation to publications made on social media like Facebook and Twitter are continuing to rise, it is important to understand how defamation law extends to the internet and whether there are any additional factors that you need to consider before defending or initiating a defamation dispute.

 

Are Defamatory Publications on Social Media any different from traditional Defamation cases?

Generally, defamation occurs when defamatory material relating to an individual is published.

The defamatory publication simply needs to be:

• communicated by the defendant to a third party other than the plaintiff;
• must identify the plaintiff; and
• must contain information or material that is defamatory regardless of whether it was intentionally published or not.

 

The method of publication includes spoken words, written communication, and even photographs, cartoons, and even gestures.

Therefore, defamation on social media that meets this criteria would likely constitute defamation, and has the potential to be just as serious as defaming someone verbally or in any other forms of traditional (hard copy) publications.

Social Media Posts: Widely Disseminated Publications

In fact, due to the wide audience that social media posts can attract at the click of a button, the repercussions of publishing a defamatory statement on social media can be even more serious and far-reaching than ever before.

For instance, by making a post “public” on Facebook, the post is visible to – not millions – but billions of Facebook users (as of the fourth quarter of 2017, Facebook claims to have 2.2 billion monthly active users).

It also goes without saying that defamatory material can spread very quickly, especially when other users ‘share’ the publication with others or ‘tag’ other people in the post.

Is it Defamation if you re-publish the Original Defamatory post by “Sharing” or “Tagging”?

A person who republishes or distributes defamatory material that was originally written or published by someone else, can still be sued for Defamation.

Therefore, it is important that you exercise caution before ‘sharing’ or distributing social media content that could be defamatory, since you can still be liable even if you are not the original author.

In cases where defamatory publications are republished, the plaintiff can sue both the original author and anyone who republishes the material.

What if someone relied on information from someone else that I did not know was false?

You can still be sued for defamation even if it is accidental.  However, at common law, there are a number of defences which do not appear in the Defamation Act 2005 (Qld), for example: unintentional defamation.  This might apply in very limited circumstances and you should seek legal advice if you believe this might apply to you.

Can I get the Material Removed from the Internet?

With every day that the defamatory publication remains on the internet, the defamatory publication can spread quickly through ‘sharing’ and ‘tagging’.   In our experience, we have also seen news agencies and other media outlets pick up on ‘trending’ social media posts, and then write articles on them.

Here at Potts Lawyers, we are highly experienced in assisting our clients with having defamatory materials removed from the internet, including from social media sites.   There are various ways to achieve this depending on the facts and circumstances of your matter.

If there is defamatory material about you on the internet, you should contact us so that we can ascertain whether we can assist you on an urgent basis to try to get that material removed.

What if the person who is being defamed has the power to remove the defamatory post themselves?

Sometimes defamatory publications are made in ‘groups’ on social media or on a person’s ‘profile’, and that person would have the power to delete the defamatory post once they become aware of it.

Where a defamatory publication is made against someone who has the power to ‘delete’ the post, by failing to delete it and leaving it up, that person might not be entitled to the same amount of damages.  You should get legal advice if this is applicable to your case.

Limitation Periods: What’s the Time Limit for Starting Defamation Claims?

It is very important to note that an action for defamation in Queensland must be commenced within twelve 12 months from the date the defamatory material was published.

Failure to make a Court Claim within that 12 month period may see you statute barred from seeking a resolution or determination from the Court.

In cases where you are defamed on social media, or where you are being accused of defaming someone else on social media, it is very important that you seek legal advice on when the material was ‘published’ since the date it is uploaded onto the internet is not necessarily the publication date.

How Do I Know if it is Defamatory?

There is no single test of ascertaining whether the publication is defamatory, and so the courts will often analyse the publication in the view of a ‘reasonable person’ and whether that publication would likely:

• lower that person’s reputation;
• lead others to ‘think less of them’
• make others ‘shun’ or ‘avoid’ them’; or
• cause others to ridicule, hate, or despise them.

Wait, doesn’t the person making the Defamatory statement need to have ‘intent’ to harm me or my reputation?

No.  The person communicating the defamatory publication does not need to intend to harm the victim. The person who makes the defamatory publication can accidentally defame another person, even if the publication is alleged to be sarcasm or fictitious.

You should seek legal advice immediately if you think someone has defamed you, or if you have defamed someone, even if it is unintentional.

What if they did intend to harm me and my reputation? Defamatory Publications ‘Actuated by Malice’:

If the person who made the defamatory publication intended to harm your reputation, the defamatory publication made have been actuated by malice under the Defamation Act 2005 (Qld).

In other words, if the defamatory publication was motivated by a desire to harm that person, it could be found that the defamatory publication was ‘actuated by malice’.  This means that you might not be able to rely on some of the defences listed out in the Defamation Act 2005 (Qld), but this should not limit the application of common law defences.

What Defence Might there be to Defamation?

Under the Defamation Act 2005 (Qld) and the common law, defences to Defamation may include:

• justification;
• contextual truth;
• absolute privilege;
• public documents;
• fair report of proceedings of public concern;
• qualified privilege;
• honest opinion; and
• innocent dissemination.

If you believe any of these defences may apply to you, you should get legal advice in relation to these defences since the Courts apply more specific tests and a wide variety of considerations of each defence.

What if the Defamatory Material on Social Media was published by someone in another State, or an by someone Overseas?

An action for Defamation in Australia can be commenced in any State or Territory in which the allegedly defamatory material was published.

For obvious reasons, the answer to this question is complicated by the fact that social media allows people to post and share information from anywhere in the world.

There are only a few Australian Court decisions which exist on addressing where defamatory material on social media is ‘published’, but you may have the right to commence a defamation action against someone in Queensland irrespective of the fact that the defamatory publication was ‘published’ by someone while they were outside of Queensland.

Notably, in the High Court case of Gutnick v Dow Jones & Co, all seven High Court justices unanimously held that the Plaintiff had the right to sue for defamation in his primary place of residence where he was best known and where most of the damage to his reputation occurred.  The Court also held that the defamation does not simply occur at the time of publishing but once a third party reads the publication and comprehends the defamatory material, which is a more readily ascertainable fact.

In circumstances where someone has defamed you on social media while they were outside of Queensland or Australia, you should seek legal advice on whether you should still take steps against that person in Queensland.

What should I do If I have been defamed, or if I am being accused of defaming someone else?

You should seek legal advice immediately from an experienced defamation lawyer.

The article above is by no means a comprehensive summary of the law of Defamation, and is only meant to provide a brief overview of the law.    The actual tests applied by the Courts for each of the issues discussed above are more detailed and complex, and ultimately the strength of your case will depend on the unique facts and circumstances surrounding your matter.  Furthermore, the law on defamation continues to develop and accordingly there may be more recent Court decisions that we may have to consider when advising you.

To book a free 20 minute consultation, call Potts Lawyers today.