Watch What You Say! Defamation and Social Media

Anyone using social media can be a publisher for the purposes of Australian defamation laws, and any publisher can be liable for defamation. This can even include re-publishing or otherwise promoting the defamatory statements of others.

The tweet that caused a stir

Debate recently flared up after an episode on the ABC’s ‘Q&A’ program, during which a vulgar tweet about Prime Minister Tony Abbott flashed across the television screen.

Lawyer Jeremy Zimet advised the ABC that the offensive twitter handle was potentially defamatory, but would more likely be regarded as abusive.

An untrue, derogatory “publications” may be considered defamatory if they cause damage or loss to the subject. Mr Zimet says that although suing for social media defamation can be difficult, complex and expensive:

“Almost half of the defamation inquiries received by Slater and Gordon in the last financial year were related to material posted on social media.”

Who can be sued for defamation?

The Defamation Act 2005 (NSW) says that a “publisher” can be sued for defamation. Although the Act does not define “publisher”, several cases have sought to define the word in various contexts.

In Consolidated Trust Co Ltd v Browne (1948) 49 SR NSW 86, the court found that a publisher is someone who makes the publication available for a third party to comprehend. This is a broad definition that includes social media ‘updates’, comments on another’s page, blogs, articles and potentially even drawings, pictures and photos.

However, it does not include the publication of information that no-one can understand the meaning of, or that no-one other than the publisher and subject can comprehend.

In Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 126, it was found that someone other than the publisher and subject must actually see the publication in order for it to have been published. But even just one other person will be enough.

Is it defamatory to republish what someone else said?

A person can be liable for simply re-publishing another person’s publication; for example, by re-tweeting a tweet. Even just posting a link to another page that is defamatory can make you liable, as long as your post implies that you agreement with the defamatory contents of that page.

This principle comes from an old case called Hird v Wood (1894) 38 Sol J 234. That case involved a man who was standing by the roadside, next to a placard that contained a defamatory statement. He set up a chair, lit up a pipe, and spent the whole day pointing at the sign in order to get people driving past to look at it. The court found that this act amounted to “publication” under defamation law – and he was found liable.

Applying this in a modern context, it could be argued that almost every link or re-tweet of defamatory material could be seen as “pointing” towards that material; potentially rendering the tweeter liable.

What are the potential consequences?

Defaming another person can have serious consequences, especially if the subject is a litigious person with the funds to back it up.

The recent action that Joe Hockey took against Fairfax for defamation over an ad and two tweets was settled for $200, 000. That’s 200, 000 pretty good reasons for the company to think twice posting defamatory material.

What can you do to protect yourself?

If you have been caught out for defaming someone, the best thing to do is often to remove the offending material immediately and issue an apology or correction. If they take the matter further, it may be wise to seek legal advice early on.

More generally, the golden rule of the internet applies: don’t post anything that you wouldn’t want plastered across the front of newspapers, or used against you in a court of law.