In brief

With the ever-increasing practice of liberal or freethinking online communication in daily life, people are suddenly finding themselves in the position of being a potential publisher of defamatory material, or regrettably on the receiving end of disparaging remarks.

What you need to know

  • When people share articles and post comments online, they are generally unaware that there could be serious consequences if they are found to have defamed someone.
  • In addition to the original publisher, secondary publishers (such as re-tweeters) as well as search engines can also be liable for defamatory statements.
  • A reliable witness must be a person who has independently witnessed the defamatory material.
  • Traditional defamation principles are constantly being adapted in the Courts to meet the demands in our new online world.
  • The following six practical issues have been identified for you to consider if you believe you have been defamed online.

If you believe you have been defamed, first and foremost:

1.   Put people on notice of the defamatory material

Put all parties on notice of the defamatory material as soon as possible after the matter is published including:

  • The original publisher – this is the person who originally published the defamatory statements whether it be online or in print.
  • Anyone who retweets, shares the article or provides a hyperlink to the article – there is an argument that these people are secondary publishers of the material and therefore also liable for the defamatory statements.
  • Any search engine by which the article can be found – if the search engine has a hyperlink to the article or includes “snippets” of the article which include one or more of the defamatory statement, they may be liable.

It is important to put all of these people on notice as soon as possible and request that the material be removed. In some cases regarding search engines, they have been found to be liable if they have been informed of the defamatory material and refused to remove it. In these cases often the Court has found the search engine is an innocent disseminator until they are notified of the defamatory material and liable after this time if they do not act to remove it. The same argument may be applied to people who share an article or provide a hyperlink to the article.

Then, before commencing action for defamation, you should consider the following issues:

2.   Are the comments about a person or company?

The only parties who can commence a defamation action are as follows:

    • A natural person – proceedings cannot be brought by or continued on behalf of a deceased estate.
    • A not-for-profit corporation.
    • A small corporation with less than 10 employees.

In many cases, even though a company is named in the publication, there is also reference to the company’s directors, CEO or employees. A person does not need to be specifically named, rather they need to be able to be reasonably identified by the description in the material.

3.   Is the material true?

Truth is an absolute defence to defamation.

For example, if someone publishes online that a sportsperson takes illicit drugs. If that sportsperson has taken illicit drugs even once, then depending on how the article is worded, the truth defence may apply.

4.   Was the comment an opinion/fair comment?

A defence of fair comment is established when:

    • the publication is a comment as opposed to a statement of fact;
    • the comment is based on facts which are substantially true;
    • the comment relates to a matter of public interest; and
    • the comment is the honest expression of the commentator’s real view.

Honesty is crucial – it need not be proven that the opinion was correct, only that it was genuinely held.

5.   Do you have a witness?

In order to commence proceedings, you need someone to give evidence that they have seen/heard the defamatory material and was able to identify the person defamed. They need to have seen/heard the defamatory material independently of the person being defamed – they can’t just have seen the material because the person being defamed sent them a link to it!

For example, if the article is in another language, you need to find a witness who read the article online and understood it in that language.

In another example, if you are suing a search engine, you need to show (amongst other criteria) that someone has used that search engine to access the defamatory material.

6.   Consider your reputational damage

Damages will be determined largely by the extent of the reputational damage. Consider the following questions:

  • Who heard/read the defamatory material?
  • Are they likely to think less of you due to the defamatory statements? E.g. If only immediate members of your family have seen/heard the defamation, the reputational damage may be minimal.
  • Has the defamatory statements been retweeted/shared on the internet?
  • Has there been a large number of people commenting on the defamatory material?

Conclusion

The issue of online defamation is relatively new and the Courts are adapting the traditional defamation principles to the online world. Especially in cases where material goes “viral”, the person who originally published the material is often not the only person who finds themselves as a defendant in Court proceedings.

If you believe you have been defamed on the internet or social media, you should seek legal advice on the merits of your claim as soon as possible after the material is published.

About the Author

Catherine Ballantyne

Special Counsel
A business disputes specialist, Catherine is a trusted advisor to businesses and individuals in obtaining successful outcomes. Businesses rely on Catherine as a trusted advisor as well as lawyer in guiding them through complex litigation and disputes.

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