Are you being defamed on social media?

"A lie will fly around the whole world while the truth is still pulling on its boots"¹

Increased use of social media has seen a proliferation of defamatory material.  But when does legitimate discussion cross the line into defamation, and what can you do about it?

What is Defamation?

The term "defamation" merges old concepts of slander (oral) and libel (written).  Defamation law in Queensland is governed by the common law and the Defamation Act 2005 (Qld).²  However, defamation occurs wherever the material is published, so there are complex jurisdictional issues, made all the more complex by the spread to other jurisdictions by technology.  Generally, defamation in its simplest form is any published imputation which is disparaging, or damaging to reputation (either personal or business reputation).³   It's worth noting that while a Council can't be defamed, its staff can be. 

To be "published" online, it must be seen by someone other than you (or your agent).  Someone who re-publishes the slur, for example by "sharing" the original post, can be liable as a publisher, as can, in certain circumstances, the administrator of the group in which the post is made. 

First Steps

After discovering a publication online which you believe is defamatory, what should you do?

As a number of defences are available to a publisher, a good starting point is to analyse the publication a little closer.  Even if you don't like or agree with the publication, ask yourself:

• What are the imputations that are carried, when read in the full context?
• Is the imputation true, or substantially true?
• Has it been published to someone with a specific interest in that information, and is the conduct of the publisher reasonable?
• Is it the publisher's honest opinion, based on proper material and related to a matter of public interest?
• Is it made the context of discussion concerning government and political matters?
• Is it trivial?⁴

If defamatory imputations are carried and you feel that the harm caused by the publication is substantial, there is benefit in obtaining legal advice from a defamation lawyer in relation to the prospects of a defamation claim, and what exactly is involved. 

However, even if a publication is defamatory, that doesn't necessarily mean it's worth pursuing with litigation, which can be long and costly.  Decisions driving this will depend on issues such as the seriousness of the slurs (for example, inference of criminal conduct is more egregious than other types of conduct or attributes), the extent of publication (for example publication to a small group versus the world at large), the ability of the publication to become viral (termed the 'grapevine effect') and the conduct of the publisher after publication (including refusals to retract the publication and apologise, or continuing to publish defamatory material).

Those who discover an online slur are often so aggrieved that they wish to remedy the injustice by demanding a retraction.  However, in the online world of keyboard warriors, trolls and gargantuan social media companies that put profits above all else, taking public steps to protect your reputation can backfire spectacularly, doing more harm than good.⁵  Careful consideration therefore needs to be given to not only whether a publication constitutes actionable defamation, whether defences may be available, and whether the publisher can be identified, but also whether taking action will produce the desired outcome of vindication, or will instead further propagate the publication. 

Generally, approaches to the social media platform itself tend to be unsuccessful.  Social media companies that actually review such complaints have to walk the tightrope of not interfering with free speech.  Sometimes, approaching the administrator of the group can be effective in having a comment removed, but it doesn't address the fact of the initial publication itself. 

A common first step designed to avoid litigation (now mandatory in some states) is to issue a letter of demand, or a "concerns notice", the latter of which must comply with the requirements of the Act, and engages the "make amends" provisions in the Act.  Again, if the administrator or platform is a re-publisher, targeting them may be more effective.   The best option is generally dependent on the circumstances, and seeking advice is important. 

Workplace Health and Safety obligations

If someone is defamed because of decisions they have made in their employment position, your organisation may owe Workplace Health and Safety obligations to them.⁶   It is common for such publications to cause emotional distress, particularly when decisions are made, or actions taken, in good faith.  Whether the publication is pursued or not, there may be other steps you will need to consider to ensure the mental wellbeing of employees is protected. 

Remedies

Typically, the only remedies for defamation are damages.  In achieving that result, however, the defamed party also receives vindication sometimes as powerful an outcome as the award of damages itself (although the degree of vindication may depend on the amount of damages awarded).  In certain circumstances, it is also possible to obtain an injunction preventing further similar publications. 

Time limits

Finally, there are time limits imposed for commencing action for defamation.⁷  These may be able to be extended by a Court in limited circumstances, and as Queensland law presently stands, a new cause of action occurs each time the slur is re-published (which, in an online world, may be indefinite).  Even so, as a general rule, unexplained delays in taking steps about a publication may result in a lower award of damages than would otherwise be appropriate, and of course the slur has further opportunity to insidiously spread, so acting promptly is advised. 

Conclusion

Governments are struggling to take necessary steps to regulate the internet, and the application of the law of defamation by the courts is, generally, even further behind.  If you feel an online publication is defamatory of you, your business or one of your employees and you feel taking some action is necessary, obtain legal advice first.  You may discover that legal action is not available, or if it is, is not necessarily the best option.  Further, as defamation law is constantly evolving, you will be fully informed of options and possible outcomes early, and will be guided through the maze that is responsibility for comments posted online. 

If you need help with a defamation matter, call Mark Williams at King & Company Solicitors today on (07) 3243 0000, or email mark.williams@kingandcompany.com.au.

¹ Attributed to Mark Twain.
² The Queensland Defamation Act is part of a national model that has recently been updated in certain states.  It is expected that those amendments will be adopted in Queensland in the future. 
³ There are, however, certain entities that are unable to be defamed, but other causes of action may be available, such as injurious falsehood. 
⁴ This is a non-comprehensive list of common reasons defamation actions fail, and there are many complexities as to how those issues are dealt with by the courts.  Further, the existence of malice may exclude many such defences. 
⁵Known as the 'Streisand effect'. 
⁶ See, for example, section 19 of the Work Health and Safety Act 2011 (Qld) 
⁷ In Queensland, there is a limitation period of one year from the date of publication for commencing litigation for defamation.