“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.”
— Australian Prime Minister, Tony Abbott (March, 2014)
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”.
In March 2014, a NSW District Court judge found school student, Andrew Farley, 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. Similarly, in 2012, an Adelaide Magistrate ordered a parent, Ms Knueppel, to pay former school principal, Ms Burtenshaw, $40,000 plus costs after making defamatory statements on a Facebook page that parents and a former student had created about Ms Burtenshaw.
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.
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.
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. 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. 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. If you have published something untruthful and damaging, you may not be able to rely on these defences to a defamation claim.
5. What Should I Do If I Am Accused Of Defamation?
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.