Key issues:
- In recent years, technology, the internet and social media have changed the ways in which we publish, interact with and distribute information.
- In 2005, the Australian states and territories enacted model defamation provisions to create a relatively uniform set of defamation laws across Australia. However, despite significant changes in technology since the introduction of those provisions, Australia’s defamation laws have not been reformed.
- Facebook defamation is extremely topical at the moment and recent Court decisions not only provide a stern warning to Facebook users about the consequences of online abuse, but also highlight some of the impractical restrictions of social media platforms such as Facebook, demonstrating the desperate need for reform of the defamation laws.
Defamation law in Western Australia is governed by the Defamation Act 2005 (WA) (Act) and case law. In 2005, the Australian states and territories enacted model defamation provisions to create a relatively uniform set of defamation laws across Australia. However, despite significant changes in technology since the introduction of those provisions, Australia’s defamation laws have not been reformed since. We recently published an article discussing the long awaited review of the model defamation provisions which was kick-started by the Department of Justice in NSW - a review which is ongoing.
It is widely accepted that the current model defamation provisions are ill-suited to the digital era. In recent years, technology, the internet and social media have changed the ways in which we publish, interact with and distribute information. Social media has also boomed, with platforms like Facebook and Twitter providing easily accessible forums for people to voice their opinions and reach a wide audience at the touch of a button. So in what circumstances can an unfavourable review or comment on Facebook be “defamatory”?
We have provided some useful steps to follow if you believe that someone has posted defamatory material on your Facebook page. However, the first step is to understand the elements that must be established in order to succeed in a defamation action.
Who can sue?
One of the topical issues currently being considered in the review of the model defamation provisions is whether the provisions should be changed with regards to the (very limited) right a company currently has to sue for defamation.
The Act introduced a general rule that corporations cannot sue in defamation, unless they can bring themselves within the definition of an “excluded corporation”. Generally, an excluded corporation is a company which is not a public body and satisfies one of the following criteria:
- its objects make it clear that it is a not-for-profit entity; or
- it does not employ more than 10 people.
Although government organisations (such as local governments) cannot sue for defamation, individual members of these organisations can (provided the relevant elements have been established). Those organisations may also have other causes of action available to them arising out of the publication of defamatory material (e.g. an action for injurious falsehood, which is available where a defendant maliciously publishes false material which causes special damage to the company or its property). These actions are much harder to prove than a claim for defamation.
Elements of defamation
To successfully bring an action in defamation, a plaintiff must show that:
- the material is defamatory;
- the material “identifies them”; and
- the material has been “published” to a third party.
An action in defamation must also be commenced within one year of the publication of the alleged defamatory material.
Defamatory material
A defamatory statement does not need to be in writing (it can be an image or even a gesture). The Act does not define “defamatory material”. However at general law, defamatory material will convey a “defamatory imputation” (i.e. a defamatory meaning), if the material tends to lower that person’s reputation in the eyes of reasonable members of the community, or exposes them to ridicule or contempt.
Material identifies an individual
Where material has been shown to be defamatory, it must identify the plaintiff. It does not need to specifically name the plaintiff, but the material must reasonably lead persons acquainted with the plaintiff to believe that he or she was the person referred to.
“Publication”
Material has been published if it has been communicated to a third person. However, where such material is available online and is capable of constantly being accessed by users, it can be difficult to pinpoint when the “publication” has occurred.
The courts have ruled that, in the digital age, “publication” of material over the internet occurs when that material is downloaded from a computer. Consequently, where material is available online, the publication of that material can be ongoing as each time an internet user downloads that material, a publication under defamation law is taken to have occurred and a fresh claim may arise each time.
Defences
Although it is relatively easy for a plaintiff in a defamation action to prove that he or she has been defamed, the real battle is to defeat the numerous defences which the law of defamation provides to defendants. Some of those defences include:
- Qualified privilege - where the defendant proves that the recipient has an “interest” or “apparent interest” in having the information on a particular subject, the material was published to the recipient in the course of giving them that information and the conduct of the defendant in doing so is reasonable.
- Honest opinion - where the defendant proves that the matter was an expression of opinion which related to a matter of public interest and that opinion is based on proper material.
- Truth - where the defendant proves that the defamatory meanings, which the plaintiff says were carried by the statements, were substantially true.
Resolving disputes
Facebook defamation is extremely topical at the moment and recent Court decisions not only provide a stern warning to Facebook users about the consequences of online abuse, but also highlight some of the impractical restrictions of social media platforms such as Facebook, demonstrating the desperate need for reform of the defamation laws.
Although the Supreme Court of Western Australia hears defamation matters, resolutions are often achievable without litigation, including by means such as an offer to make amends to an aggrieved person and/or an apology. An increasing number of Australians are turning to the Courts to deal with online defamatory comments which can result in costly and lengthy battles that are often highly disproportionate to the interests at stake.
However, there are a few practical steps you can take if you believe you have been defamed which will potentially avoid expensive and time consuming court action (or, if court action is inevitable, enable you to recover appropriate compensation), including:
- immediately retain evidence of the defamatory material (before there is any chance of it being removed) or any re-publishing of the defamatory material; and
- attempt to have the material removed and request an apology (i.e. by asking the publisher to remove the material (if appropriate) or engaging lawyers to send a Concerns Notice under the Act (sometimes incorrectly described as a cease and desist letter).
If you would like to discuss the defamation laws, or you are concerned about a comment or review that has been posted on your social media platform, please contact Brett Bolton from the HopgoodGanim Lawyers’ Dispute Resolution team.