At a glance
We live in a world of constant online abuse, where anonymous people troll anonymous people for the fun of it, and where private grudges in the real world get played out as ugly spats in a virtual one.
It probably comes as no surprise then that social media defamation suits are rising exponentially across the world.
Australia is no exception, prompting one of the country’s best known defamation judges to push for a major legal overhaul to deal with the lawsuits flooding the courts as a result of disputes on social media.
Judge Judith Gibson, who runs the defamation list in the NSW District Court, said in March that an overwhelming majority of defamation cases before the courts derive from social media. Angry people are seeking urgent redress and recompense for abusive posts. The country’s defamation laws, which date back to 2006, are out of step with technology, Gibson said.
Laws, of course, take months to be amended and updated, while social media evolves and users of Twitter and Facebook adapt and readapt to the platforms on a daily basis.
“The speed of publication on social media gets traction so quickly that current legal remedies aren’t a great way of dealing with the problem,” says Kym Fraser, commercial litigation partner at Clayton Utz.
Something needs to be done, but what?
The legal profession believes that something must be done, but nobody quite knows what. Some mention a special tribunal, others a fast-track system or a small claims jurisdiction.
While big payout cases involving actress Rebel Wilson and former treasurer Joe Hockey have received the most attention, the person-on-person attacks – what defamation lawyers call “backyarders” – are causing legal logjams.
Australia’s defamation laws were enacted and passed in 2005 (and came into effect 1 January 2006), the year after Facebook was founded and before the advent of iPhones and Twitter. The laws remain unchanged.
Different jurisdictions, different laws for social media
The weakness in the law, claim some, is that there is no quick, cheap and effective mechanism to get material removed.
“It could be a practice court where not a lot of proof may be required,” Fraser suggests. “You [would] then get an immediate order for a comment to be taken down with an expert panel judging what [constitutes] real defamation and what is simply abuse.”
England and Wales have a “serious harm test” that weighs up libel for the reputational or financial harm it might cause, but it is not universal. Different countries have adopted different policy responses to social media, says Dr Matt Collins, chairman of the Victorian Bar.
The US, Collins says, has taken “a typically extreme response” and granted social media platforms complete immunity.
“They’ve taken the line that freedom of online expression is more important than damages that can be done to online reputations,” he says.
“You have to sue the person defaming you, not the platform that published the defamation.”
The presumption in the UK is also that you can’t sue a platform unless you have exhausted your legal rights against the party responsible for posting the offending material. “Then you might consider it,” Collins says.
In Australia, damages can be brought directly against the social media behemoths. One of the most recent high-profile cases involves Eddie McGuire, a well-known broadcaster and president of the Collingwood Football Club, who says Facebook hosted a spoof advertisement naming him as a user of Tryvexan, a fake treatment for erectile dysfunction.
Facebook is liable because it did not properly review and check its advertising, McGuire’s legal team has argued.
In the UK, businessman Martin Lewis is suing Facebook for defamation, claiming that it published more than 50 fake advertisements using his name or picture.
“It claims to be a platform, not a publisher – yet this isn’t just a post on a web forum, it is being paid to publish, promulgate and promote what are often fraudulent enterprises,” Lewis says.
Google has also been targeted. In late June, the High Court ruled that Google itself was potentially liable for defamation on material it carries, which could spark a series of cases levelled at the internet giant.
The landmark decision was made as Melbourne’s Milorad Trkulja, who was shot in 2004, continues to appear in searches such as “Melbourne criminal underworld” alongside images of known former gang leaders Tony Mokbel, Mick Gatto, and the late Carl Williams. Google is now set to face off with Trkulja, who is seeking an undisclosed sum.
The case for special legislation for social media
One of the problems, Collins continues, is that platforms are situated offshore, making them very difficult to sue: “It depends on how these companies have structured themselves,” he says.
“Typically, they’re headquartered in the US and their overseas subsidiaries don’t operate platforms, just sell advertising.”
Patrick George, senior partner at Kennedys law firm in Sydney, and a contributor to and editor of Defamation Law in Australia, says there is a disinclination among platforms to simply remove contentious material as it weighs against the First Amendment right (in the US) to speak and comment freely. As the platforms are US-based, their response references the First Amendment to the US Constitution, protecting freedom of speech.
Without a court order, nothing will get done, he says, but as the law currently stands getting one would involve a lengthy and costly legal process. Special legislation is needed, he argues.
An alternative view
However, not everyone sees legislation as a panacea. David Rolph, a professor at the University of Sydney Law School and renowned defamation expert, says new legislation may prove capable of dealing with current technology, but what of future technology iterations?
“The law could easily become obsolete tomorrow,” Rolph says.
“And if written with too much flexibility, you might impose liabilities on people or activities that you never intended nor wanted to impose liability on. There can be a downside to legislating as well.”
Social media etiquette
There is plenty of talk about “netiquette”. Make sure you know your customers and avoid words and phrases that might put them off. Probably the best rule of thumb is the self-test – would you put in a post what you would say face-to-face in real life to a client or customer?
George says employers need to consider to what degree they allow employees to use social media – if at all. Businesses could be sued for statements made on social media by their employees in the course of business, he warns.
This is an occupational hazard for journalists.
“They’re often putting out opinions and can be sued for comments made outside their workplace – and yet it can come back to their employers,” George says.
It may be that the best option is to hire a professional, external social media manager or implement a policy to ensure employees don’t use social media during work hours unless properly controlled and strictly in line with prescribed business standards.
Other tips include only allowing blog posts by identifiable, registered users. You have to be able to keep tabs on who is saying what under the brand’s name and the business needs the authority to censor or monitor blog posts should any comments overstep the mark and breach the rules of the site.
For individual employees who may have been caught in the defamation firing line, the fact that your business might have no policy is not a valid defence. The courts consider website posts that can be seen by an infinite number of people as comments made in the public domain.
If they are made outside business hours, an employer might argue that the employee was not under the business’s care and that the comments were made in private time.
“It might be a timing matter, but it depends on the nature of the defamation,” George notes.
“Liking” or even retweeting a tweet can also be construed as libellous. Sharing a post can be as liable as the offending post itself. The obvious course – should you or your business be accused of defamation – is to remove the post and offer a retraction, in the hope the “offendee” might forgive the offender.
Sydney University’s Rolph says the best policy is never to personalise anything.
“If you are interested in publicising an issue, keep it general. People do like to give things a human face – if it’s positive, that’s fine, if it’s not, talk to the issues, not the person.”
Rolph advises individuals and businesses to be absolutely certain that what they publish is true and can be proven to be so.
“So long as the facts are right, you’ll be able to disprove any allegation of falsehood, but always base a social media comment on facts.”
So, you've been libelled...
Think very carefully about using the law courts to resolve defamation claims, is the advice many legal experts give. Proof of defamation may cost money and time, as well as exact an emotional toll. Gibson says legal costs are increasing in defamation cases and “ordinary people” suing over social media posts might find themselves facing bills well over A$100,000.
The general recommendation is not to enter into this lightly. Small business owners could have a case if disgruntled customers write inaccurate and damaging reviews, but there has to be a definite and provable downturn in trade as a result.
To qualify as defamation, the material has to have been transmitted to a third party, who must be able to see, hear, or read the material. Without this, filing for defamation will not pass legal muster.
However, there have been successful cases. An electrician whose former client defamed both his workmanship and ethics won his case, as did a Sydney surgeon who was subjected to a campaign of harassment by a former patient, including an offensive website and death threats. He was awarded A$480,000 in damages for defamation.
The damages a court awards will depend on the harm done. Payouts tend to be in the vicinity of A$10,000 to A$50,000.
There is also the option of sending “classic” legal letters, which may cause people to think twice – even defamation lawyers advise that anything is better than a costly and protracted dispute that might end in a moral win but cost far more than the damages awarded.
The simplest course of action is to ask for the comment or comments to be taken down by the offending party, and for them to publish a public correction or retraction. You can report the defamatory material to social media platforms and ask them to remove the offending material, but it may not be heeded.
“If a social platform is not initially supportive, keep trying,” says Jillian Bowen, general manager content and social media at CPA Australia.
“Persistence can sometimes be successful, particularly if you have an advertising account with the social platform, and you can get someone a little more senior to review the issue.”
In the case of a third-party page or group, Bowen advises that you contact the administrator and ask them to remove the post, as it is more likely for defamation to occur on a page or group rather than a personal profile.
The best solution for all? To paraphrase a sepia-toned saying: If you haven’t got anything nice to post, be it from your Twitter account, on a Facebook group, or soon, probably a Slack chat, log out and don’t say it at all.