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Defamation and Social Media – an update

Defamation is a routine matter to take to Court.  Like all legal matters, there are tricks of the trade, but it is a fairly simple process – albeit costly because it is time consuming. In the past, defamation cases largely involved journalists and authors. These days, Twitter, Instagram, blogs, review websites, news websites are all sources of defamation cases. Last month, a NSW Judge called out the failure of government to revisit defamation laws in light of the sheer volume of cases now in the courts, and the unique challenges thrown up by social media.

Two of the more publicised defamation cases arising from comments on social media in recent years include:

  1. former Australian Treasurer, Joe Hockey being awarded $200,000 because of defamatory tweets; and
  2. a teacher being awarded $110,000 because of defamatory comments posted by a student.

It is this latter case that throws up some of the challenges posed by social media, which some claim the law does not adequately address. The challenges include:

  1. the reality that it is much easier now to be defamed, and to defame;
  2. that there is in effect no time limit now for suing or being sued because of the current definition of publication – publication takes places each time an online post or article is accessed; and
  3. there are significant legal costs for individuals suing because of posts on social media.

The NSW Government has responded to the comments regarding these unique challenges and announced that it will review defamation laws to address changes with social media and technology.  Whether other States and Territories will follow suit is unknown. There are, of course, issues of significance for us all around free speech and access to justice that must be balanced in this review.

In the meantime, here are some things you need to know about social media and the law:

  • Defamation can occur when a person writes something about another person or business that lowers the reputation of that person or business in the public’s eyes.
  • Defamation can arise from direct comments about a person or a business, or from indirect comments.
  • Defamation occurs where there is publication. Publication can occur through a tweet, a comment or an article.
  • If your organisation has a social media account, monitor the account for potentially defamatory comments and delete them immediately, after taking a copy.
  • Ensure you have a social media policy in place so your staff can manage the risks of defamation.
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