Social Media and Online Reviews in the world of Defamation: Beware What You Post

Earlier this year, the Sydney Morning Herald published an article about a couple who posted comments about a neighbour on a community social media page.  The article highlights the caution that should be exercised when posting content on the internet, especially social media websites.

The comments in question arose following a dispute about the neighbour’s barking dog in the small knit community of Scotland Island.  As a result of the comments, the neighbour commenced proceedings in the District Court of New South Wales, claiming that the comments gave rise to the imputations that he is:

“mentally unstable, contemptuous of accepted social conventions and decorum, has a history of violence and should be avoided by members of the community.”

The commenters were required to post an apology as part of a settlement and incurred significant legal costs.

The first social media defamation case for Australian courts was heard last year.  This matter concerned a high school student who was ordered to pay more than $105,000 following his publication of a series of defamatory posts about a teacher at his school.  The posts were made on his Facebook page (with about 50 friends) and Twitter feed (with about 60 followers).

What is defamation?

Defamation occurs when a person publishes matter that is, or may be, defamatory of another person (Defamation Act 2005 (NSW) section 12).  Being defamatory means making a statement that results in an “ordinary reasonable person” viewing the individual concerned in a lesser light.  This can include:

  • stating that someone is corrupt, dishonest, or disloyal;
  • stating that someone is suspected of committing, or alleged to have committed an illegal act;
  • ridiculing an individual;
  • stating that someone has a contagious disease, is suffering from insanity, or say something that is likely to cause the person to be shunned or avoided, even if there is no suggestion of bad character.

Publication in defamation refers to information being communicated.  This can be by way of:

  • an article, report or advertisement in a newspaper, magazine or periodical;
  • a program, report, advertisement or other thing in television, radio or the internet;
  • a letter, note or other writing;
  • a picture, gesture or oral utterance; or
  • any other means by which something may be communicated to another person.

The plaintiff (that is, the person commencing the proceedings) bears the burden of proof in defamation proceedings.  The plaintiff must prove:

  1. the communication was published by the defendant; and
  2. the communication has been published to a third person; and
  3. the communication identifies or is about the plaintiff; and
  4. the communication is defamatory.

Do the comments in question need to have caused damage to the plaintiff?

However, the plaintiff does not need to prove that they have suffered damage as a result of the actions of the defendant in order to commence proceedings (section 7(2)).

But the comments were only made on a discussion forum.  Surely I can say what I like?

Defamation is actionable regardless of where it appears – whether it be in a discussion forum, on social media, or in the newspaper.  The same principles apply, irrespective of whether it appears online or in print.

It is also crucial to note that a person who merely shares the defamatory comment may also be found liable for defamation.  In 2012, Yahoo! and Google were each ordered by the Victorian Supreme Court to pay damages of $225,000 and $200,000 to the one person.  Once the publisher knows of the existence of defamatory material, they can be liable for it if they do not take proactive steps to remove it.

What about posting an online review?  Can the business take action against me?

Australian law allows small businesses – with fewer than 10 employees – to take defamation action over material that is posted to online review sites.

Customers who publish malicious or negative reviews with an ulterior purpose can face thousands of dollars in penalties.  For a small business to be successful in such a claim against a reviewer, it would have to show that:

  • the online review was not the reviewer’s honestly held opinion; or
  • the review was malicious –with the intention of damaging the business’ reputation by making others avoid dealing with the business.

In 2014, Fairfax was ordered to pay more than $600,000 in damages to a restaurant owner following a negative review published online by one of its food critics.  The Court found that following publication of the review, the owners were left distraught, patronage declined dramatically and the business shut six months after an extravagant opening.

So if you are reviewing a business, whether a restaurant, accommodation or service provider, remember that:

  • the review should be treated as if it is being published to the world at large – would you be happy for the review to be published on the front page of the Sydney Morning Herald?
  • you should not publish the review with an ulterior motive;
  • the review should be truthful and accurate; and
  • you could be liable for significant penalties if the review is found to be defamatory.

What does the Court take into consideration?

In determining whether something published by a person “is, or may be, defamatory of another person,” the Court is required to examine the alleged defamatory material and determine whether through the natural and ordinary meaning of the communication published:

  • it is likely to injure the reputation of the plaintiff;
  • it is likely to make the plaintiff be shunned and avoided;
  • it is likely to lower the plaintiff in the estimation of others.

GavelI think I have been defamed.  Do I need to do something about it now, or can it wait?

Defamation proceedings can be commenced by an individual or small businesses – a corporation with more than 10 employees cannot sue for defamation, unless it is a charitable organisation – HOWEVER court proceedings must be commenced within 12 months of the publication of the communication.

Someone has accused me of defaming them.  But my comments were justified!

If you have been accused of defaming someone, it is suggested that you immediately remove the offending material and offer an apology.  Ideally, such an apology should be in writing, and should include:

  • an offer to publish a reasonable correction; and
  • an offer to pay expenses reasonably incurred by the complainant to the time of the offer.

In the event that the offended person decides to commence court proceedings against you, you may be able to rely on a defence available to you under the legislation:

  • Justification – if you can prove that the statement was “substantially true” – although there must be evidence to support this. You cannot rely on rumour, gossip or any other form of “hearsay” evidence (section 25)
  • Contextual Truth – if you can prove that defamatory imputation was accompanied by one or more other imputations that are “substantially true”, and that the defamatory imputation did not further harm the reputation of the person in question, due to the substantial truth of the contextual imputations (section 26)
  • Absolute Privilege – if you can prove that the defamatory material was published in the course of the proceedings of a parliamentary body, an Australian Court or an Australian Tribunal (section 27)
  • Publication of Public Documents – e.g. if the defamatory material was contained within a public document, such as a report or paper published by a parliamentary body, court or tribunal (section 28)
  • Fair Report of Proceedings of Public Concern – such as proceedings by a parliamentary body, international organisation of another country’s government, a sporting or recreation body, or a trade union (section 29)
  • Qualified Privilege – you would need to show that you acted reasonably, in good faith, and without malice (section 30)
  • Honest Opinion – you need to prove that the statement was an expression of opinion, and not a statement of fact, that it related to a matter of public interest, and it was based on proper material (section 31)
  • Innocent Dissemination – if you can prove that you had no knowledge of the defamatory nature of the statement, and that your failure to detect the defamatory content was not due to negligence (section 32)
  • Triviality – if you can prove that the circumstances of the publication were such that the person in question was unlikely to sustain any harm (such as internal office emails regarding employee absenteeism – see the recent case of Enders v Erbas & Associates Pty Ltd (No. 2) [2013] NSWDC 44 regarding an email sent by an employer to its employees about employee absenteeism] (section 33)

In awarding damages in defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded (section 34).

In order to avoid the potentially costly situation of having to defend legal proceedings for defamation, it is important to consider the potential impact of any items posted on social media.

Contact Shire Legal if you are concerned that you or your business have been defamed on the internet.

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