Defamation and Social Media
The explosion in the use of so-called social media – Facebook, Twitter and blogs – in recent years raises some interesting legal issues for the unwary.
Defamation, harassment and racial vilification are areas of potential concern in the new media – just as they are in newspapers, television and radio. The difference is that in the new media, anyone can throw their opinion out into cyberspace unchecked – with a potentially vast audience and consequently dramatic consequences if care is not taken about what you say and how you say it.
Recently news broke that the editor of a national newspaper was considering legal action against a media academic/commentator over allegedly defamatory tweets. It brought the issue of the potential to defame people on Twitter and other social media sites into the national spotlight.
Of course defamation has never been restricted to the traditional news media like newspapers, radio and TV. People have also sued over poems, novels, cartoons, paintings, photographs, artistic criticisms, letters, songs and satire, so it should come as no surprise that defamation is also an issue with social media sites.
So what is Australia’s defamation law, and how can it be applied to social media sites?
Defamation is a communication from one person to at least one other that lowers or harms the reputation of an identifiable third person, where the communicator (known as the publisher) has no legal defence.
Australia’s law of defamation aims to balance our democratic right to free speech with the right of every individual to enjoy a reputation free from unjustified or indefensible attack.
For a defamation action to succeed, the person complaining of the defamation (the plaintiff) has to prove that the communication has been published to a third person, that it identifies (or is about) the plaintiff and that it is defamatory.
With social media, the first point is easy enough to establish. If someone sends out a tweet, for example, chances are it will be seen and read by hundreds and potentially many thousands of people. Clearly even an email sent to one other person would be considered publishing in the legal sense.
The second point about identity may be harder to establish. Obviously it is pretty straightforward if the plaintiff is actually named, but other identifying information may be considered sufficient. Describing someone as the referee of a particular football match, for example, would identify that person to just about everyone who was at the match (so be careful what you say about referees!)
Obviously, the most important issue is whether the communication actually damaged the person’s reputation. The test is whether an “ordinary, reasonable person” would consider that the communication “lowers/harms the plaintiff’s reputation, holds the plaintiff up to ridicule, or leads others to shun and avoid the plaintiff.
There are three main defences to defamation: honest opinion; justification/truth; and qualified privilege (which protects people who have made a complaint to the police, for example).
But the best defence is caution. My advice is to be as careful with what you say on Twitter or Facebook as you would be in any other communication.