In a ground-breaking legal development, Brian Hood – the mayor of Hepburn Shire in Victoria – declared that he is preparing to file the world’s first defamation lawsuit against the artificial intelligence (AI) program ChatGPT. Hood alleges that ChatGPT has “falsely named him as being involved in a foreign bribery scandal,” which is a claim that severely impacts his reputation.
On 21 March 2023, Hood’s lawyers issued a concerns notice to the owners of ChatGPT allowing them 28 days to address their errors or risk facing a defamation lawsuit. If Hood chooses to take legal action against ChatGPT, his case would set a precedent for future defamation matters involving AI.
What is defamation?
Defamation occurs when an individual or business’s reputation has been wrongfully attacked in a written or oral statement to a third party. Before defamation proceedings can commence, a concerns notice must have been served to the publisher of the defamatory statement.
What is a concerns notice?
A concerns notice, as defined in s 12A Defamation Act 2005 (NSW), is a written notice which provides the publisher of a defamatory statement with details of how their statement has a defamatory meaning that caused, or has the potential to cause, harm.
The publisher may respond to this concerns notice through an offer to make amends. An offer to make amends may be provided within 28 days of the concerns notice being served. It must be in writing and may include:
- An offer to publish a reasonable correction, clarification or additional information about any particular defamatory imputations
- An offer to inform the third party that the imputations are, or may be, defamatory in nature
- An offer to pay for any expenses incurred by the aggrieved person whilst considering the offer and before the offer was made.
In Hood’s matter, his lawyers served a concerns notice to the owners of ChatGPT (OpenAI) to rescind the false claims that Hood was imprisoned for bribery.
To learn more about concerns notices, please visit our website.
How does defamation apply to AI?
Hood argues that the owners of ChatGPT should be responsible for the defamatory imputations it produces. With AI, however, the onus is less clear because ChatGPT does not cite the original sources that it uses to generate its content. This makes it near impossible to attribute defamatory content to a specific author.
In another case relating to technology and defamation, Fairfax Media Publications Pty Ltd v Voller  HCA 27, the High Court ruled that Australian media outlets can be held liable for “defamatory third-party comments on their social media posts.”
This case began in 2017 when Dylan Voller sued media companies such as the Sydney Morning Herald, Sky News and The Australian for comments posted by Facebook users. The Court found that in creating, administering and controlling the content posted on their public Facebook pages, the media companies encouraged and facilitated the publication of third-party comments. Accordingly, the Court held that the media outlets were rendered publishers of the defamatory comments.
In recognising media companies as liable for third-party comments, Voller’s case sets a precedent for attributing defamatory imputations to the owners of an original post, and not the comments themselves. In the matter of AI, this ruling makes it plausible for OpenAI to be held accountable for defamatory material because no author/s can be verified.
The future of defamation and AI
The cases of Hood and Voller draw attention to the question of who is responsible in instances of AI defamation.
Hood’s case holds the potential to establish a new precedent relating to the ethical and legal accountability of AI platforms. As such, defamation involving AI would also impact the legal frameworks of intellectual property infringement. As AI-generated content continues to evolve, there is pressure on the government to adapt to changes in liability, regulation and defamation.
If you, or someone you know, has been emotionally or financially impacted by defamatory comments, we recommend seeking professional legal advice. If you would like to discuss your defamation matter with a legal professional, please contact us on (02) 9963 9800 or at [email protected].
A concerns notice is a process available in defamation law under the Defamation Act 2005 (NSW) (‘the Act’).
A concerns notice is sent to a person who has made defamatory statements, giving them an opportunity to respond and make amends. They might, for example, offer to retract the statements or issue a public apology.
In the event that a reasonable offer is made but is not accepted, that reasonable offer may provide a complete defence if legal action is taken by the person who alleges defamation. It is up to the judge to determine whether or not the offer ought to have been accepted and in doing so will consider whether it was a reasonable offer.
Issuing a concerns notice gives a person who may have breached the Act an opportunity to prevent a claim being made against them by putting forward a reasonable offer. It also gives the victim of the alleged defamation an option for correcting the comments, therefore protecting their reputation.
To be able to use the reasonable offer as a defence in any subsequent legal action the offer:
- Must be in writing,
- Must indicate that it is an offer to make amends under the Defamation Act,
- Must include an offer to publish a reasonable correction of the matters in question; and
- May include an offer to pay the other party’s reasonable expenses incurred before the offer was made.
Whilst the offer may include an offer to pay the compensation, this is not a requirement. However, it would be relevant when considering whether the offer was reasonable, if proceedings are commenced.
A concerns notice is therefore an appropriate tool when you are seeking to resolve a matter quickly, usually with an apology and sometimes with compensation.
In many cases, a person may not respond to a concerns notice. This means that they have lost the opportunity to put forward an offer and to prevent proceedings being initiated against them.
Seek Legal Advice
If you wish to commence proceedings in relation to a defamation matter, you must do so within twelve (12) months from the date of publication of the comments. If you would like further information regarding defamation or general media law advice, please do not hesitate to contact one of our experienced solicitors on (02) 9963 9800 or via the contact form here.
Disclaimer: Since the publishing of this article, the Defamation Amendment Act 2020 No 16 (NSW) has come into force. Please use caution if you are citing legislative material from this article as laws are subject to change. We recommend that you seek the most up-to-date law.
As our methods of communication change and develop so do our defamation law needs. These changing needs have been recognised recently in a bill (the Defamation Amendment Bill 2020 (NSW)) that has passed in the New South Wales upper house. It amends the Defamation Act 2005 (NSW). These reforms are aimed at reducing the number of costly minor claims and the size of defamation payouts. Here are some of the major changes you need to know.
Serious Harm Element
Previously, there was no threshold that had to be met with respect to the seriousness of a claim in Australian defamation law. Claims were not filtered until they reached trial, which meant they had already incurred significant costs both financially and with respect to time. In the proposed amendment, section 10A, the onus would be placed on the plaintiff to prove that the publication ‘has caused, or is likely to cause, serious harm to the reputation of the person’. The aim of section 10A is to encourage the resolution of disputes earlier by creating a threshold that must be met for cases to reach trial.
Single Publication Rule
There has been an amendment to the Limitation Act 1969 (NSW) to include a single publication rule. Previously, a defamation action had to be commenced within one year of the publication as per the limitation period, but there was an exception in the form of the multiple publication rule. This rule provided that each publication of the article was subject to its own limitation period – so if a media organization reproduced an article, that new version would be subject to a fresh limitation period, as opposed to being constrained to the limitation period of the original article. The newly introduced single publication rule means that the limitation period commences when the initial publication occurs and subsequent republications of substantially the same content is not subject to its own limitation period.
Another amendment would mandate that the person about whom the defamatory comments are made must issue a concerns notice to the other party. This notice would enable the other party to provide an offer to resolve the issue before the commencement of court proceedings. The amendment provides clarity as to the form of this notice, its timing and content as well as guidance as to responses.
Public Interest Defence
A new defence has been put in place to ensure that Australian defamation laws do not inhibit freedom of expression. This new defence is the ‘public interest defence’. The new section, section 29A, states that a defendant will not be liable for defamation if the article concerns an issue of interest to the public, and they reasonably believed that the matter was in the public interest. It is then up to the court to determine whether the defence has been established. This amendment is of use to media organisations who print information from confidential sources or whistle-blowers, who may otherwise be at risk of defamation proceedings.
Contextual Truth Defence
The contextual truth defence allows for defendants to argue that the context in which the defamatory imputations appeared contained other imputations that were substantially true. This was designed to operate in instances where there are multiple defamatory meanings – some are ‘substantially truthful’ while others are not. These were amended in section 26 of the new Bill, which has been reformed to clarify the defence.
There has been inconsistency with the interpretation and application of the previous section 35 of the Defamation Act 2005 (NSW). This section provides a maximum amount for the damages that may be awarded for non-economic loss. However, the amendment provides that awards of aggravated damages must be made separately to an award for non-economic loss.
If you would like further information regarding defamation or believe that you have been defamed or accused of posting defamatory content on your social media page, please do not hesitate to contact one of our experienced defamation solicitors on 9963 9800 or via our contact form here.
Defamation cases in Australia are notoriously hard to run. The main consideration in assessing a claim for defamation is whether there is a monetary loss suffered by the defamed party. Recently, a Sydney lawyer, Chris Murphy, was successful in recovering over $100 000 for defamation against the Daily Telegraph who has described him as ‘continuing to battle with the ravages of age and with associated deafness that keep him from representing clients’.
These matters exemplify the importance of understanding what constitutes defamation and how it balances with the doctrine of freedom of speech in order to protect yourself or your business.
What is Defamation?
In essence, defamation involves the publication of material that adversely impacts another person’s reputation. Defamatory material can come in the form of a photograph or newspaper article but can also commonly involve content published and distributed online or on social media. Therefore, it is important to carefully consider what you post online in order to protect yourself against defamation actions. For example, in one social media defamation case of Mickle v Farley  NSWDC 295, a school teacher was awarded over $100,000 after a former colleague posted abusive tweets in response to her promotion.
Defamation in NSW is governed under the Defamation Act 2005 (NSW) and similar instruments exist in other states and territories. To be successful in establishing an action for defamation, the plaintiff generally needs to establish the following:
- The material was communicated to or spread to third parties;
- It identifies the plaintiff or their business; and
- The material contains one or more negative imputations which causes serious harm to the plaintiff’s reputation.
In addition, defamation actions are subject to a one year limitation period from the initial publication of defamatory material.
Defences to Defamation
There are a number of defences available to a defendant in a defamation action. These include:
- Truth: where the statements made are ‘substantially true’;
- Honest opinion: where the statements are opinions rather than statements of fact;
- Absolute privilege: where the statements are made in circumstances covered by absolute privilege, such as communications made in court proceedings; and
- Free speech: where the statements are related specifically to relevant political matters or political communication.
Defending a defamation action can be complex and time consuming, so it is essential to seek legal advice before you commence proceedings.
Case Study of Chris Murphy v Daily Telegraph
The reputational damage at the centre of this case was caused by an article published by the Daily Telegraph, which inferred that Mr Murphy was too old and/or disabled to practice law competently. In his decision, His Honour Michael Lee held that the phrase in contention conveyed that Mr Murphy was incapable of representing his client’s interests in court due to his age and deafness, which inaccurately reflected on Mr Murphy’s professional life with serious consequences. The Daily Telegraph sought to rely on the defence of truth as Mr Murphy’s did indeed have a hearing disability. This argument was rejected by the court which found that Mr Murphy’s disability had nothing to do with his purported inability to appear in court.
In addition to the compensation awarded by the Court, the article in question was later rectified to read as: “Murphy… continues to manage matters for his firm’s clients but hasn’t been seen to represent them in court as much in recent times”.
How Etheringtons Solicitors can help
If you would like further information regarding defamation or believe that you have been defamed or accused of posting defamatory content on your social media page, please do not hesitate to contact one of our solicitors on 9963 9800 or via our contact form here.
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.
According to Brian Martin, Professor of Social Sciences at the University of Wollongong, the law of defamation hinders free speech and protects powerful people from scrutiny. He actively investigates “suppression of dissent” and writes articles on his findings. In his informative leaflet, Defamation law and free speech, which can be found on his website, he focuses on providing information and options for people who may be threatened by legal action or who may be worried about something they want to say. Martin defines defamation as anything that injures a person’s reputation. “If a comment brings a person into contempt, disrepute or ridicule it is likely to be defamatory,” he says.
His list of potentially incriminating actions include telling your friends your boss is discriminating against you, writing a letter to a media publication stating a politician is dishonest or selling a book containing defamatory material. “The fact is, nearly everyone makes defamatory statements almost every day,” Martin says. “Only very rarely does someone use the law of defamation against such statements.”
If a defamation claim is made against you, Martin suggests focusing on whether you have a right to say something instead of if it is defamatory or not. Your defence can be on various grounds including speaking the truth, the duty to provide information or expressing an opinion, Martin says. He also suggests ways to avoid defamation in the first place, by stating facts and not the conclusion. “Instead of saying “The politician is corrupt,” it is safer to say “The politician failed to reply to my letter” or “The politician received a payment of $100,000 from the developer,” Martin says.
Other ways to avoid defamation include producing and distributing material anonymously, sending what you intend to publish directly to the people who might sue you for it or criticising a person to their face. Martin says defamation only occurs when the comments are heard or read by a “third person”.
As an advocate for the use of petition, street stalls and public meetings to directly challenge the use of defamation laws against free speech, Martin says defamation actions and threats to sue for defamation are often used to try and silence those who criticise people with power and money. He believes our right to free speech is important because it ensures the free flow of ideas and the preservation of democracy.