5 Things You Should Know About Australian Defamation Laws

To tweet or not to tweet:

5 Things You Should Know About Australian Defamation Laws

May, 2014

By Jacqueline Walker, Senior Lawyer

Legal Disclaimer

This presentation is offered for general information

purposes only. It does not constitute specific legal

advice or opinion. You should not act or rely upon any

of the information contained within this seminar

without seeking the advice of a qualified solicitor who

specialises in the particular area of expertise and

jurisdiction that you require.

Introduction

“The thing about social media is that it is anonymous, so it can be much more vitriolic and extreme than normal media and yet it is there for everyone to see. It is kind of like electronic graffiti.”

Tony Abbott

Australian Prime Minister

March 2014

Introduction

A costly tweet from a student about his school teacher has reminded us that being online requires a fair degree of caution in order to avoid the risk of being exposed to defamation claims resulting from “electronic graffiti".

Introduction

In March 2014, a NSW District Court judge found school student, Andrew Farley (pictured right), guilty of posting defamatory Facebook and Twitter messages about his former high school teacher, Ms Christine Mickle, and ordered him to pay $105,000 in damages as well as the schoolteacher’s legal costs .

Introduction

Similarly, in 2012, an Adelaide Magistrate ordered a parent, Ms Knueppel, to pay former school principal, Sue Burtenshaw (pictured below), $40,000 plus costs after making defamatory statements on a Facebook page that parents and a former student had created about Ms Burtenshaw.

Introduction

The rampant rise of social media has meant that every tweet, Instagram post or Facebook status update could lead to a potential defamation claim if the poster isn’t aware of the limits to publishing statements about people in Australia.

Representing one of the first cases in Australia about the use of social media in a defamatory context has proceeded to judgment, the legal profession expects to see more of these claims in the future.

Here are some tips for social media users:

1. You Are A Publisher

Don’t underestimate the fact that we are all publishers of information in the age of the internet and social media.

No matter how temporary the publication is and regardless of the medium, offensive snapchats and dubious Instagram pics are not immune to Australian defamation laws.

1. You Are A Publisher

In Australia, defamation occurs when a person intentionally publishes information about another individual or group of people or small company that leads to damage to their reputation or causes others to think less of them, or exposes them to hatred, contempt or ridicule.

So think twice before you post derogatory pictures of your ex or hurtful and damaging comments about your former boss or colleague.

2. With Freedom Comes Responsibility

Without being bound by a human rights charter or the guarantee of free speech as exists in the United States via the First Amendment, Australia has laws which aim to balance the right to speech against the right to protect one’s reputation. 

2. With Freedom Comes Responsibility

In August 2013, an Australian public service employee, Ms Michaela Banerji, suffered the consequences of her actions when she criticised Australia’s refugee policies, politicians and a number of her colleagues.

In rejecting Ms Banerji’s claim for an interlocutory injunction preventing her employer from dismissing her, the Federal Circuit Court found that Australians did not have an ''unfettered implied right (or freedom) of political expression''.

3. Other People’s Actions Can Affect Yours

In the Farley case, Judge Elkeim referred to social media as having the “grapevine effect”.

Journalist, Julia Possetti, landed in hot water when she was threatened with a lawsuit by the Editor-in-Chief of The Australian newspaper for tweeting about comments made by another reporter regarding the Editor-in-Chief’s apparent motives in controlling her coverage of climate issues. 

3. Other People’s Actions Can Affect Yours

You should be aware of the grapevine effect…

…the ability to retweet other people’s posts and comment on other people’s Facebook pages can also open up the possibility of being accused of defamation even if you haven’t created the post.

4. Possible Defences To Defamation

In certain circumstances, you may have a defence to defamation such as the fact that your post or tweet was an expression of an honest opinion or that the statements you made were true.

4. Possible Defences To Defamation

If you have published something untruthful and damaging, you may not be able to rely on these defences to a defamation claim.

5. (a) What Should I Do If I Am Accused?

Remove the offending status post, tweet or photograph and offer an apology if you have offended someone.

If you are uncertain as to whether or not you are exposed to legal action, seek the assistance and advice of a qualified lawyer to review your situation.

5. (b) What Should I Do If I Am A Victim?

Defamation cases can be quite complex and always involve a number of factors.

The first step is to sit down with a lawyer and have your case properly assessed, which includes reviewing the defamatory comments that have been published and any subsequent communication that has occurred between all of the parties involved.

The defamation lawyer will be able to assess whether you have a case and your prospects of success.

Final Note:Should Business Owners Be Worried?

Yes. As a business, if you are advocating or hosting an online discussion that takes place on your social media channels, you could be liable for any defamatory comments that users make whilst taking part in that discussion, if you don’t act quickly and remove the defamatory comments once a complaint has been made.

With this in mind, we recommend all businesses have a “notice and takedown procedure” included as part of their social media policy.

Turnbull Hill Lawyers – Contact Us

If you have any further questions about defamation or you'd like to discuss a related matter, please do not hesitate to call:

John Woodward on 1800 994 279 or email him.

We will endeavour to respond to your enquiry within 24 hours.