Social Media – Watch What You Say!

Social media has become an integral part of our everyday lives – allowing us to connect and express ourselves in a range of ways.

But some use social media as a way to vent personal frustrations, without regard to the impact upon others.

Although sites like Twitter and Facebook are a great vehicle for sharing what’s on your mind, a social media ‘rant’ can have consequences if you accuse someone without proof or justification.

False accusations

A Victorian woman recently found herself making both headlines and apologies after her reckless use of social media.

The woman, who wanted to remain anonymous in media interviews, posted photographs on Facebook of a man whom she mistakenly thought was taking photos of her children in a shopping centre, with a caption informing parents to beware of ‘this creep’ and insinuating he was a paedophile.

She was shocked to find her actions could lead to prosecution, and said she did not realise that her actions were illegal.

The harm and loss

The incident caused a media stir, and the woman reported having received death threats as a result of her mistake. Her own children are also receiving counselling.

The victim of her rant, a self-confessed daggy dad who was actually taking a selfie with a Star Wars cut-out to send to his own kids, said he was surprised when a friend informed him that his photo was circulating Facebook pages warning parents he might be a paedophile.

He went to police to explain the situation, and they carefully checked his phone and his story. This ‘mistaken rant’ has left him feeling “shattered, sick, embarrassed and devastated.”

Such unfounded accusations can result in a great deal of both psychological and financial suffering. Victims can potentially be suspended from their place of employment or even lose their jobs, lose clients if they operate their own business, or lose the trust and confidence of their community. They may even face a criminal investigation.

The damage can also extend to family members, who may receive ridicule from their social circles or places of employment. This could lead to mental health conditions like depression or issues such as truancy from school.

Possible legal action

While the woman seems to have escaped legal action by making a public apology, there are legal actions a person can face if they make false allegations or incite hate or violence against individuals or groups on social media.

These include defamation actions, breaches of vilification laws and even criminal charges from ‘criminal defamation’.

Defamation

Defamation occurs when someone’s words harm another’s reputation or profession or cause others to shun, avoid, ridicule or despise them. A successful defamation suit can have the defence paying out large sums of money to the victim, depending on the extent of legal costs and the damage done.

Matters that are relevant to a defamation action include that:

• The words – written or spoken – must be considered defamatory in meaning by ordinary members of society.
• There is no need to prove that the words actually caused harm, only that the words could have led to harm.
• The person defamed does not have to be named, there needs only to be proof that an ordinary person would have been led to know the words were directed to that person. Therefore, a photo of someone with a caption underneath could potentially be enough to prove this element.
• The words need to have been seen or heard by a third person.

Defamation potentially has both civil and criminal implications.

Civil liability arises from publications likely to harm an individual’s reputation, and will afford the victim monetary compensation if they are successful. The civil provisions are uniform across Australia.

Criminal liability for defamation is not uniform across Australia, and states will have different variant degrees to this action. This is an action brought against an individual (or group) by the Department of Public Prosecutions (DPP).

In NSW, section 529(3) of the Crimes Act is titled ‘criminal defamation’ and states that:

“[A] person who, without lawful excuse, publishes matter defamatory of another living person (the victim):

(a) knowing the matter to be false, and

(b) with intent to cause serious harm to the victim or any other person or being reckless as to whether such harm is caused, is guilty of an offence.”

The maximum penalty for this offence in NSW is three years’ imprisonment.

The lady at the centre of the defamatory comments on Facebook may have faced this charge if she was a resident in NSW, although it may have been difficult for police to prove that she knew her allegations to be false.

Defences to defamation

Australia does not have a universal right to free speech to the same extent that the citizens of the United States do. Australians only have an implied right to communicate on political matters, and it is this implied right which is sometimes used to justify remarks.

However, if the statement is an unsubstantiated false claim, then defamation can proceed.

The NSW Crimes Act states that any defence which can be used in civil defamation proceedings can also be used in criminal defamation proceedings.

These include:

• Justification.
• Contextual truth.
• Absolute privilege.
• Publication of public documents.
• Fair report of proceedings of public concern Qualified privilege of certain information.
• Honest opinion.
• Innocent dissemination.
• Triviality.

What does defamation cost?

Defamation can be very costly indeed.

In 1995 and 1996, Channel 7 broadcast allegations that the then prominent Sydney solicitor John Marsden had previously had sex with boys under the age of 18 years. Mr Marsden took an action of defamation against the network.

The Supreme Court case cost Channel 7 over half a million dollars in 2003, which Channel 7 appealed. It went to the NSW Court of Appeal, where a rehearing was ordered. But there was no rehearing, as Channel 7 and Mr Marsden settled out of court, with Mr Marsden allegedly receiving between $6 and $9 million in damages. It is still to date Australia’s longest-running defamation action, lasting six years.

Vilification

Many aspects of vilification laws are based on similar concepts to defamation laws.

Although vilification was not a factor in the Facebook case, vilification laws target any hatred with words or actions towards a particular class of people based on their race, religion, ethnicity, sexuality or disability.

The vilification laws are currently only a civil penalty and do not incur criminal charges. Allegations need to insult or offend a person due to factors such as race, religion or ethnicity. They do not necessarily need to be knowingly false for an action to be brought forward.

A prosecution was made against a website author under this a law in 2002 when the author of a website printed information which denied the Holocaust.

As outlined in our previously blogs, the federal government sought some months ago to dilute laws against racial vilification by repealing section 18C of the Racial Discrimination Act. However, it reversed that plan due to a public backlash. But as we recently reported, the idea now appears to be back-on-the- table, with Communications Minister Malcolm Turnbull looking to ‘soften’ laws against racial vilification.

The end result?

The average social media user should be aware of how their words and actions on the internet can have legal consequences, both civil and criminal.

The lesson to be remembered when using social media is to be careful what you say.

If you have been falsely accused of something, particularly if you fear a police investigation as a result, talking to an experienced criminal law firm may help.