Not many people are aware of the risks associated with posting on social media. Popular social media platforms such as Twitter and Facebook are not safe spaces to vent your thoughts. In fact in a recent defamation case, the defendant was ordered to pay a staggering amount in damages for his post on Twitter. In this blog, we explore the meaning of defamation and how it still applies in the modern age of social media.
What is Defamation?
Defamation is either an oral (called ‘slander’) or written (called ‘libel’) statement about someone which injures the reputation of that person. In general terms, to prove defamation, one must show the existence of a false statement, which the defendant may try to argue that it was an honest opinion or a fair comment. In Australia, the Defamation Act 2005 sets out the rules regarding defamation law.
Can You Defame People on Social Media?
It is absolutely possible to defame people on social media in Australia and the defamed individual may bring proceedings against you for what you said.
In order to bring a successful defamation case against an individual who posted defamatory material on social media, the following must be satisfied:
- The material must be defamatory;
- The material must identify the plaintiff; and
- The material must have been published to a third party.
Are There Any Recent Case Law Examples?
A recent decision from March 2020 revealed that harsh penalties can be imposed for defamatory statements published on social media. The Supreme Court awarded $110,000 for damaged in relation to defamatory comments made on a Facebook page about the plaintiff.
In this case, a series of posts on a public Facebook page called “Narri Leaks” were made by the defendant Mr Stoltenberg. The post implied that, Mr Bolton, the Mayor of Narrabri Shire Council, was ‘corrupt, dishonest and intimidating in his role as Mayor’. Ms Loder, the other defendant, made “comments” on those Facebook posts.
Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. It was found that the Facebook posts were indeed defamatory, and that Mr Stoltenberg had no defences available to him.
What Can I Do If I Am Defamed Or Being Sued For Defamation?
It is always important to be aware that your activities on social media can have very costly consequences.
If you believe that you have been defamed or if you have been accused of defamation due to posts on your social media page, then you should seek legal advice immediately.
For assistance or advice on how to proceed please call on (02) 9963 9800 or get in touch via our contact form here.
The area of defamation law is rapidly expanding as we find new ways to engage with each other over the internet. In this technological era, we caution you to be think twice before you meme.
The NSW Police Meme
The NSW Police Force’s official Facebook page has exploded in popularity recently. Specifically, more than one million people follow the page. This is likely due to their social media approach which uses humour to engage with young people.
The NSW Police recently had to issue a public apology to National Rugby League (NRL) referee Matt Cecchin. The police posted a meme in the lead up to game three of the State of Origin. The image depicted Mr Cecchin in a Queensland jersey in a doctored photograph. It was accompanied by the caption ‘NSW Police uncover QLD’s plan to replace Jonathan Thurston in game three.’
The image of Mr Cecchin was posted with humourous intentions; however, it has since been deleted and a lengthy apology issued. The apology statement stated that the police force wished to ‘… make clear it did not intend to make any serious assertion that Mr Cecchin was biased as a referee and only intended for the meme to be a light-hearted joke.’ However, the police acknowledged that in posting the meme, Mr Cecchin suffered hurt and damage to his reputation. The NSW Police Force said they ‘withdraw any such suggestion unreservedly.’
Anyone Can Be Involved in Defamation
It’s important to remember that defamation cases extend to people who did not necessarily create the material. You can be involved by simply sharing it. A split second decision to share information or a funny photograph could prove very costly. In a recent case, a NSW student was ordered to pay $105,000 in damages to his teacher after a series of defamatory Facebook and Twitter posts.
A good idea when posting on social media is to take the ‘newspaper test.’ In this test, you pretend you are an editor of a newspaper outlet. Think of the reaction that would ensue if what you are sharing online was published in a paper.
Further Information on Defamation
We can provide you with further information on defamation law. Don’t hesitate to contact our experienced defamation solicitors at firstname.lastname@example.org or on 9663 9800.
If you Google search your name and defamatory material appears, what can you do? Can you sue Google for defamation?
2014: The New South Wales Supreme Court
In 2014, the New South Wales Supreme Court was asked to decide whether Google Inc. was liable for defamation. In this case, Google showed defamatory content from another website in search results.
The court had to consider was whether Google could be considered a “publisher” under the Defamation Act 2005. If Google was found to be a publisher, it would be liable for defamation. This is despite the fact that Google did not create the content.
In this case, the court ruled that Google could not be held liable as a publisher. They rules that it was merely Google’s search engine that produced results that contained defamatory material.
2017: The South Australian Supreme Court
Fast forward to 2017 and the South Australian Supreme Court was faced with a similar situation. In this case, Dr Duffy was unhappy with psychic advice she received. Therefore she posted online complaints about the psychics. The psychics then published articles about Duffy, claiming she was a ‘psychic stalker’.
Consequently, Google’s autocomplete suggestions read ‘Janice Duffy Psychic Stalker.’ Duffy wrote to Google multiple times requesting the autocomplete suggestions be removed.
The Court was faced with the same issue as the NSW Supreme Court – whether Google was a publisher. The South Australian Supreme Court came to a different conclusion, noting one key distinguishing feature. In this case, Google had been informed about the autocomplete suggestion and had been given notice of its detriment.
Therefore, the Court found that Google was a publisher. Once they had been given notice of the defamatory material, it wasn’t removed due to human action or inaction, making Google a publisher. This case was upheld by the Full Court of the Supreme Court of Australia.
So, Can You Sue Google?
In conclusion, if Google is given notice of defamatory material published online, they may be held liable for its continued existence. This has been considered a ‘watershed’ moment in Australian defamation law.
Defamation law is an interesting, but often complicated area of law. You should seek professional advice if you have concerns that you have been defamed or want online material about you or your business to be removed. At Etheringtons Solicitors, we have successfully worked with many clients in defamation matters and may be able to help you. Contact us today to organise your initial consultation.
Defamation Case Australia: Rebel Wilson v Bauer Media
On 13 September 2017, the court awarded actress Rebel Wilson $4.56 million. This is the largest defamation payout in Australian legal history. She succeeded against Bauer Media in the Supreme Court of Victoria. Wilson sued the online publishing company for eight articles that labelled her as a “serial liar”. She succeeded in proving that the statements damaged her reputation. Wilson also proved that they caused her financial loss by impacting her ability to secure acting contracts.
This case highlights the unique overlap between the right to free speech and defamation law in Australia.
What Is the Right to Freedom of Speech in Australia?
Our right to freedom of speech does not appear in the Australian Constitution. However, the Constitution creates an implied right to freedom of speech. This is for the purpose of allowing us to speak freely about important issues without fear of punishment.
Our right to freedom of speech allows for ‘political communication’. However, you should keep in mind that this freedom is narrow. It doesn’t cancel out other Australian laws. If what you publish online breaks other Australian laws, you cannot claim innocence because of ‘freedom of speech’. Instead you can still be punished.
An example is the decision of Banerji v Bowles. In this case the court punished Immigration Department bureaucrat for posting certain information on Twitter. It was regarding Australian asylum seeker detention policy.
Preventing Racial Discrimination
The most significant restriction on our freedom of speech is racial discrimination. In Australia, the Racial Discrimination Act limits individual freedom of speech to deter hate speech. The offence of racial discrimination is ‘[any act likely to] offend, insult, humiliate or intimidate another person or group of people’. This applies if it is based on their ‘race, colour or national or ethnic origin’.
How Does Defamation Impact on Our Freedom of Speech?
The New South Wales Law Reform Commission describes defamation law as the balance between freedom of speech and protection of reputation. Even passing comments between peers can be considered defamatory. However, it is rare that an individual would use the law of defamation to defend such statements.
However, the Act does try to maintain our right to freedom of speech by stating that one of its purposes is to ‘ensure that the law of defamation does not place unreasonable limits on freedom of expression’.
Rebel Wilson’s case highlights the relationship between freedom of speech and defamation. Articles that were published online made claims about Ms Wilson which had no supporting evidence. As a result of those articles Wilson suffered financial damage through missed film opportunities.
How Can You Avoid Making Statements that Qualify as Defamation?
Social media platforms such as Facebook and Twitter give us a public voice. They allow us to air our opinions to friends and the world. Whether you are posting on your personal account or writing blogs for a living, you can follow one simple rule to avoid defamation. You should state the facts, not the conclusion. Present the facts about an issue but allow your readers to draw their own conclusions from your writing.
Find evidence to support your statements as another safeguard. Reference the evidence in your writing to show that you are well-informed and objective.
To find out more about defamation and what it means for you, please get in touch.
Do We Have the Right to Freedom of Speech in Australia?
The short answer is no, we do not have the right to freedom of speech in Australia.
Freedom of speech is important for democracy in Australia. It provides people with the information they need to become aware of issues and decide what action to take. However, there is nothing in the Australian Constitution that protects your right to freedom of speech.
We don’t have the right to freedom of speech but we have an implied freedom in political contexts. The High Court has implied the freedom of political communication from the Australian Constitution. This includes communication necessary to ensure we have proper elections and votes. However, this implied freedom is quite narrow, as it can’t be used as an excuse to disobey Australian laws.
For instance, in Banerji v Bowles, an Immigration Department bureaucrat posted her opinions of the government’s asylum seeker detention policies on Twitter. This was in breach of the Australian Public Service Code of Conduct (‘APSCC’). Mr Banerji argued that the APSCC was invalid, as it breached the implied freedom of political communication. The court rejected this argument, saying that the freedom ‘does not provide a licence to breach a contract of employment’.
The Racial Discrimination Act limits freedom of speech in Australia to deter hate speech. Section 18C makes it unlawful to ‘offend, insult, humiliate or intimidate another person or group of people’. This is based on their ‘race, colour or national or ethnic origin’.
Andrew Bolt infamously breached this section in 2011. Bolt wrote several articles implying that people were identifying themselves as Indigenous to be eligible for scholarships despite their lighter skin colour. The court found that he breached Section 18C. Bolt had to insert a disclaimer before his articles stating that he breached the Discrimination Act.
Implied freedom of political communication can provide you with some protection. However, it cannot be used as a defence for breaching other laws in Australia. Our freedom of speech is also limited by the Discrimination Act to minimise hate speech. To find out more about freedom of speech and whether you or someone else might have breached any laws, please get in touch.
Have You ever Googled Yourself?
Imagine that you didn’t just see a few Facebook pictures. What if the first page of results contained links to articles about you that you considered to be defamatory. Could you start an action against Google Australia for allowing these articles into the public arena?
The simple answer? No.
Case Example: Defteros v Google Australia
Recently, a Melbourne lawyer, George Defteros attempted to claim damages for defamation. The attempt was against Google Inc., and its Australian subsidiary, Google Australia Pty Limited for the publication of search results for his name. He claimed that although he has been a lawyer for over thirty-seven (37) years, the first page of results labelled him a ‘gangland’ lawyer.
So How Is that Google’s Fault?
Mr Defteros argued that as Google Australia is involved in making revenue from advertising, it is effectively facilitating Google Inc.’s operation in Australia, and hence is participating in the search engine function itself. Consequently, Google Australia should be considered a “publisher” for the purposes of defamation law. This argument was rejected by the judge.
Google Australia, on the other hand, argued that Mr Defteros’ interpretation could lead to inappropriate consequences. For instance, let’s say someone was selling their car and purchased an advertising spot in a newspaper. In an unrelated article in that edition, a person was defamed. If Mr Defteros was to succeed, then it would be like holding the car seller, or even the newspaper employee who sold the advertising space, to have participated in the business and be ‘publishers’. The Court therefore accepted the argument and described the consequences as ‘plainly absurd’.
The Court ultimately dismissed the case against Google Australia, finding that Mr Defteros had no real chance of success. The Court also found that Google Australia had no control over the search engine, which was run by Google Inc. in the United States.
Mr Defteros’ case against Google Inc. remains ongoing.
It is clear from this case that establishing defamation can be difficult. If you speak to someone with an understanding of defamation law it can potentially save you a lengthy, unsuccessful legal battle. Please get in touch with us if you have any questions about defamation.