defamation on facebook
DESCRIPTION
Defamation on Facebook - Defamation on Social Media - Online defamationTRANSCRIPT
HomeLearn about the LawFind a Lawyer
Home » Social Media and Defamation
92 13
by The FindLaw TeamSo you’ve just been burned by an ex, and you want that person to have their comeuppance, and the traditional voodoo doll isn’t cutting it anymore. What to do? Well, you decide toturn on your computer, go online, and take out your frustrations via Facebook and Twitter, as well as posting the obligatory picture that paints them in a bad light. Your friends andfollowers get a good laugh, they ‘like’ or re-tweet your postings, and all of the sudden a new internet meme is born and you get your long sought after revenge. Your ex discovers theridicule that he or she is subjected to, and as a consequence, friends, workmates, anyone that has any interaction with him or her is subjecting your ex to the same type of ridicule inthe real world, lowering their reputation. Feeling good about your handiwork? Well, your ex isn’t impressed and just as quickly, he or she accuses you of defamation.
Online defamation
The world of Facebook and Twitter is a wonder to behold, but many Australians mistake the perceived anonymity and immediateness of social media as a green light to say and dowhatever they feel like, without thinking of the consequences beyond the internet. Defaming someone’s character where the ‘ordinary reasonable’ person’ views the individual in alesser light is a fine line to tread. Keep in mind it’s defamatory to:
• state that someone is corrupt, dishonest, or disloyal• state that someone is suspected of committing, or alleged to have committed an illegal act• ridiculing an individual• state that someone has a contagious disease, is suffering from insanity, or say something that is likely to cause the person to be shunned or avoided, even if there is no suggestionof bad character.
Yes, it may seem harmless to post that drunken picture of your ex, whilst commenting on their private lives in a derogatory manner might prove cathartic to your broken heart, you haveto keep in mind that your actions may have defamed your ex as well. In Australia, even if you have not made your defamatory comments in the country, according to Jason Bosland,Senior Lecturer of Media Law at the University of Melbourne, if you have a reputation in Australia, you can be defamed – no matter where in the world you made your comments.
What to do if you have defamed someone online
Now that you have realised the extent of your actions have caused: What should you do? If the material is indeed defamatory, remove the material immediately, and offer to makeamends if your ex has made a complaint that they have been defamed, within 28 days. You can make amends in writing and it must include:
• offer to publish a reasonable correction• offer to pay expenses reasonably incurred by the complainant to the time of the offer.
Your ex can accept your offer of atonement, the action ends there and you can count your blessings that your ex is forgiving in nature. However, if your ex is still bitter about the wholeordeal, and takes you to court, you do have a defence to defamation if the court finds that your offer was indeed reasonable. An apology can also be useful and it’s not used as anadmission of liability as well.
The next time you’re on the internet, having just been spurned by your ex-lover, and are intent on posting the most embarrassing and damaging material possible; stop yourself frompressing the send button, and pick up that voodoo doll instead. If your ex is the vindictive type (hey, they’re an ex for a reason) make sure you get the appropriate assistance.
92 13
Read more related articles
ITTelecommunications
Find Lawyers
Find LawyersFind a LawyerLearn
Learn about the LawRead ArticlesMarketing
Law Firm MarketingImprove your visibilityRegister
Register your DetailsYour firm not listed? Click here
Hi there! We want to make this site as good as it can for you, the user. Please tell us what you would like to do differently and we will do our best to accommodate!
What in particular do you want to let us know about? *
158
158
Social Media and Defamation 1 of 2
Search
News World Sport Comment Culture Business Environment Science Travel TechnologyLife & style Data TV Video
Postgraduate open day - Thursday 22 May
N/A - Bedfordshire, Luton, Bedford -UNIVERSITY OF BEDFORDSHIRESENIOR PUBLICIST
Competitive package dependent onexperience - Central London located offthe Strand close to Covent Garden - JOALLAN PRBrowse all jobs in this category
Today's best video
Top chefs reveal their biggest kitchen mistakesFrom trying to grate melting butter tothrowing away £400 worth of white trufflesand stabbing colleagues with knives, chefsshare their biggest kitchen errors
48 comments
World marblechampionship seesGermany beat BritainThe two countriesgo head to head inthe final of the
world marble championships, played in thecar park of a pub in West Sussex
Prince George visits Sydney's Taronga zoo on
NewsMediaSocial media
This site uses cookies. By continuing to browse the site you are agreeing to our use of cookies. Find out more here
Six things to know to avoidbeing sued for defamation inAustraliaIf you tweet, have a Facebook account or postphotos on Instagram, then congratulations –you’re a publisher. Here is a guide to protectingyourself against legal action on social media
70
17
Share 309
Paul Farrelltheguardian.com, Wednesday 5 March 2014 18.09 AEST
Jump to comments (14)
Be careful when tweeting rumours, half truths or innuendo aboutpeople – and don’t tweet in anger. Photograph: Reuters
A $105,000 damages award to an Australianschoolteacher after a series of defamatory posts onFacebook and Twitter has put the spotlight on how weuse social media.
Andrew Farley was just one year out of high schoolwhen he posted defamatory messages on Facebookand Twitter about Christine Mickle, a teacher at hisformer high school. The posts, which a New SouthWales district court judge found had “no substancewhatsoever” cost Farley $105,000 – as well as an orderto pay Mickle’s legal costs.
While cases about the use of Facebook have gone totrial before, this is the first time a decision aboutparticular tweets has progressed this far in Australia.Here are six ways to avoid the situation Farley foundhimself in on social media.
MediaSocial media
LawDefamation law
TechnologyInstagram · Facebook· Snapchat · Twitter
Edition: UK US AU Sign in Beta About us Subscribe
Six things to know to avoid being sued for defamation in Australia ... 1 of 5
1.
2.
3.
4.
5.
Last 24 hours
Empire strikes back in the battle forreaders by embracing digital
Netflix announces $1bn revenues andhigher prices for new subscribers
Beyoncé releases an album – within aweek it's as if it had never happened
A Sunday Times sting ends up with thestingers being stung...
Mirror's weeping child picture is a lieand smacks of lazy journalism at best
More most viewed
royal tourThe press got theperfect photoopportunity whenPrince George met
a bilby with his parents, the Duke andDuchess of Cambridge at Taronga zoo
KFC's Double Down isback: 'This sandwichis America'Adam Gabbattwent to see ifpeople would eat
what was previously described as a 'newlow' in America's culinary history
On Media
Follow NSA-related developments ascontroversy over leaks continues to makeheadlines
1. Everyone is a publisher
The big message to take away from Farley’s case is thatwe are all publishers on the internet. Everyone whouses platforms such as Facebook and Twitter can havelegal action taken against them if someone can showthey have lowered their reputation in the eyes of others.A Snapchat or Instagram image which has adefamatory comment could still be enough to land youin legal difficulty.
2. Malicious messages are rarely viewed favourably
Be careful when tweeting rumours, half truths orinnuendo about people – and don’t tweet in anger.Australia’s defamation laws are favourable to peoplemaking defamation claims. The absence of a strongguarantee of free speech or a human rights charter hasallowed speech in Australia to be quite easily restrictedby the parliament. While some aspects of defamationlaw were wound back in 2005, there are still limiteddefences available compared with the strongerprotections for speech afforded to citizens in the UnitedStates.
3. Be cautious with the courts
Tweeting or posting on Facebook about ongoingcriminal trials can also land people in hot water.Publishing the odd tweet about an old case is probablyOK, as long as there aren’t ongoing legal proceedings.But if a criminal case is still going, be very careful aboutwhat you write online.
4. If you’re on a jury, don’t Facebook message the defendant
In Britain a juror contacted a defendant in amultimillion-pound drug case online because she felt“empathetic” towards his situation.
cant get anyone to go either no one budgingpleeeeeese don’t say anything cause jamiethey could all miss trial and I will get 4ckedto0,” she wrote to the defendant in oneFacebook post.
There hasn’t been a case like this yet in Australia.
5. Posts other people make on your social media profiles could stillleave you vulnerable to legal action
One of the oddities about social media is that you canbe a publisher in the eyes of the law even if you haven’ttyped a word. If another person leaves a defamatoryFacebook post on your wall and you fail to take it downif somebody objects to it, you can be found to be apublisher of that post. This has been more commonlyused against news sites or web forums that fail to takematerial down after receiving notice, but one contemptof court case in Australia has considered this veryscenario – a business was found guilty of contempt fornot taking down Facebook posts made on their wall.
6. You don’t have a right to freedom of speech (particularly if you
Most viewed Latest
Six things to know to avoid being sued for defamation in Australia ... 2 of 5
More from the guardian
I am a widow and feel exhausted by work and family – but Iam terrified to stop in case I can't start again 20 Apr 2014
Why is Good Housekeeping's 'intimate test' on vibrators soshocking? 17 Apr 2014
Mirror's weeping child picture is a lie and smacks of lazyjournalism at best 17 Apr 2014
Today's media stories from the papers 16 Apr 2014
Rupert Murdoch believed to be involved in leading bid forChannel 5 16 Apr 2014
are a public servant)
Be careful what you tweet about your work, particularly ifyou’re in the public service. In a recent case anImmigration Department employee, Michaela Banerji,was critical of Australia’s refugee policies, politiciansand some of her colleagues. The department workedout who the tweeter was and took action to dismiss her.Banerji sought an injunction but the federal circuit courtdenied it, finding there was no unfettered freedom ofpolitical communication for her in the process.
Sign up for the Media briefing emailAn indispensable summary of what the papers aresaying about media on your desktop before 9am.
Sign up for the Media briefing email
Share
Six things to know to avoid being sued for defamation in Australia ... 3 of 5
Comments for this discussion are now closed.
14 comments. Showing conversations, threads , sorted
All comments Staff replies Guardian picks
LouSnickers
Or, be like me and dont have a Facebook or Twitter account!
05 March 2014 9:00am14
2 PEOPLE, 2 COMMENTS
Stu Gâmiette-Reynolds
@LouSnickers Agree on most counts with you - but in this day and age, not havingat least a presence on a social platform goes against you. I've thought aboutdeleting all of mine - it's near impossible to erase though. I envy you :-)
05 March 2014 9:16am
icurahuman2 Stu Gâmiette-Reynolds
it's near impossible to erase though
I haven't found that an issue. Whatever they've kept is going to be so outdatedand useless that storing remnants would be a waste of space and time. Andnot having a presence on social media doesn't go against you, in fact among alot of teenagers (my kids included) not having a Facbook/Instagram or Twitteraccount is considered cool - though I think it's more to do with beingfashionably aloof than being "safe".
05 March 2014 12:36pm1
2 PEOPLE, 2 COMMENTS
Angela Rangad
Boy oh boy...gag the world
05 March 2014 10:51am2
kimberleys Angela Rangad
I agree! Most of the social campaigns for saving humans, forests, oceans,native animals, real food, no gm food etc in all countries are on socialmedia. So they are now going to stop us via legal means? Totally smellslike totalitarianism to me.
05 March 2014 11:00am1
icurahuman2
Good. Anyone who is so stupid as to still belong to Twitter is a twit and anyone stillon Facebook after so many serious and dangerous negatives, including this one,deserves a wakeup.
05 March 2014 12:30pm3
3 PEOPLE, 4 COMMENTS
Tealthantos
The department worked out who the tweeter was and took action todismiss her. Banerji sought an injunction but the federal circuit courtdenied it, finding there was no unfettered freedom of politicalcommunication for her in the process.
Take it to the international court then, last I checked Australia was a signatory to theUN charter of human rights which includes the right to free speech.
So sick of people trying to claim that we don't have the right to free speech herewhile telling us that we must stand behind our treaties even if we don't like saidtreaties while ignoring the most important one on human rights
05 March 2014 1:42pm2
theoilman Tealthantos
it's easy to say that as a technicality, but try doing it in reality. that's a verylong, very difficult road.
05 March 2014 8:32pm
Six things to know to avoid being sued for defamation in Australia ... 4 of 5
Where do you draw theline when it comes totaking photos in public?12 Apr 2014The debate aroundFacebook groupWomen Who Eaton Tubes hasthrown up anumber ofquestions aroundprivacy and socialmedia. Have yoursay in our openthread
9 Apr 2014Twitter redesign makesprofile pages resembleFacebook
9 Apr 2014It's not just for #selfies –Australian councils sharetheir work via Instagram
7 Apr 2014Immigration departmentaccused of intimidatingrefugee advocate
Urban Instagramphotographers youshould follow4 Apr 2014Love urbanphotography?Addicted toInstagram? Thesesnappers capturetheir own cities inbeautiful andsurprising ways onthe popular socialsite
Related information
Hot topicsLeveson inquiryPhone hackingPrivacy & the mediaNewspapers & magazinesNews International
License/buy our content | Privacy policy | Terms & conditions | Advertising guide | Accessibility | A-Z index | Inside the Guardian blog | About us | Work for us | Join our dating site today
© 2014 Guardian News and Media Limited or its affiliated companies. All rights reserved.
Six things to know to avoid being sued for defamation in Australia ... 5 of 5
Online social networking: defamation
Did you know that posting statements or pictures online to harm a person’s reputation may be
against the law? This is called defamation and is banned behaviour on social networking sites.
What is defamation?
Defamation is where a person intentionally states or spreads information about another person tocause others to think less of that person. Whether a particular statement is considered defamatory
will depend on the circumstances of each situation, but as a rough guide a defamatory statementcan be anything that:
Makes someone the butt of jokes;Damages their reputation;
Causes others to avoid them.
What are some forms of defamation?
Defamatory material can take many forms including novels, poems, cartoons, paintings and songs.
More recently things that have been said on the internet have also been considered to bedefamation. It does not matter what form you use to state or spread defamatory comments, it is
against the law.
Is defamation illegal?
Yes, defamation using any form is illegal. If you defame someone, and you’re found guilty ofdefamation, civil fines usually apply. This means that the Court will order you to pay damages
(compensation) to the victim. The amount the Court orders you to pay will vary depending on thecircumstances. Under some special circumstances, defamation can be treated as a criminal matter.
What is cyber defamation?
Cyber defamation is any defamation on the internet. Just like other types of defamation, cyberdefamation is also against the law. An example of cyber defamation is when someone sends an
email saying hurtful things about you to someone else or if they post hurtful and untrue thingsabout you on the internet.
What can I do if I have been defamed on the internet?
Contact the website administrator such as Facebook, Twitter or YouTube and report what has
happened and request that the information be taken down.
The Court has recognised cyber defamation to be the same as other forms of defamation and you
can take action against a person who defames you over the internet. Even if they did not nameyou, as long as there is enough information for other people to recognise that the defamatory
material is about you, then it is enough. If you feel that you have been defamed by comments,photos or other material written about you online you can contact the website administrator and/or
the police.
What to do if you have defamed someone over the internet?
If you have defamed someone over the internet, it is not too late to do something about it. Firstly,you should remove the material immediately. If the person you have defamed made a written
complaint that you have defamed them, you can offer to help and improve the situation within 28days.
Online social networking: defamation - Legal Aid NSW 1 of 2
Sometimes you might find that you become involved in defaming someone without meaning to. For
example, if someone sends you a defamatory email about someone else and you forward it on toother people. In that case, even if you were not the original author, you may still be responsible.
Also, be aware that because emails can be circulated so easily, there might be more people gettingthe email than you originally intended.
Example
Nicole is 16 years old and was doing a part-time apprenticeship at a local hair salon. Although she
liked her job, Nicole wanted to find a salon that could employ her full time. After she started hernew job, Nicole found out that her old employer had been sending emails to clients saying that
Nicole was fired because she stole hair products from them. When Nicole saw this, she was angrybecause the things her previous employer had emailed were not true. Nicole was worried that her
reputation as a good employee had been damaged.
If Nicole’s previous employer deliberately told clients things that were not true about Nicole and this
damaged Nicole’s reputation, then Nicole has been defamed. This is against the law and Nicole cantake legal action against her former employer.
Want more information?
For FREE legal advice and information you can send a Lawmail at www.lawstuff.org.au.
The Cybersmart website at www. cybersmart.gov.au has lots of useful information on how to be
cybersmart and protect your digital reputation. If you want to talk to someone about cyberbullying,you can call the Kids Helpline on 1800 55 1800 or visit their website at
www.kidshelpline.com.au.
This information was last reviewed on 10 April 2012. This factsheet provides information about the
law in NSW. It does not provide legal advice. If you need advice, or if you would like informationabout the law in a state or territory other than NSW, please send us a Lawmail at
http://www.lawstuff.org.au.
National Children's and Youth Law Centre, and the Children's Legal Service of Legal Aid NSW, 2010. You may copy, print, distribute, download and otherwisefreely deal with this work for a non-profit purpose provided that you attribute the National Children's and Youth Law Centre and Legal Aid NSW as the owners.To reproduce or modify the work for any other purpose, you need to ask for and be given permission by the National Children's and Youth Law Centre.
In-kind design provided by UTS: Shopfront. Design by morethanhuman.com.au.
Online social networking: defamation - Legal Aid NSW 2 of 2
(http://www.techlife.net)
Online Defamation: What you need to know
(http://www.techlife.net/2013/05/online-defamation-what-you-need-to-know.html)
Shock and disbelief. This was Julie Posetti’s reaction to discovering that the Editor-in-Chief of The Australian was suing her fordefamation. The substance of his complaint? Three tweets.
While covering another journalist’s presentation at an academic conference in 2010, Posetti live-reported the event on Twitter,quoting and summarising the speaker’s description of working conditions at The Australian and claims regarding the Editor-in-Chief,Chris Mitchell. Mitchell objected to the tweets in his paper the next day, calling the claims a lie and threatening to sue Posetti for anattack on his character. Widely reported as the first Australian Twitter defamation action, the controversy took many in the journalistcommunity by surprise, not the least of all Posetti herself.
“My human reaction was shock and disbelief, I suppose,†she says. “I think there was also the sensational element thatcame from this possibly being the first incidence of a Twitter defamation case. But I maintain what I felt then, which was from mypoint of view, I was doing the sort of work that I had done on a daily basis as a radio news reporter going to a conference, reportingwhat I heard, doing so I believe fairly and accurately in what is essentially a real-time environment.â€
Home (http://www.techlife.net) » Online Defamation: What you need to know
0 2 2
Online Defamation: What you need to know - TechLife 1 of 11
Julie Posetti photo credit: Tim Anger
As an experienced journalist and a journalism lecturer at the University of Wollongong (one whose PhD focus is The Twitterisation ofJournalism, no less), Julie Posetti would have possessed a professional understanding of issues surrounding defamation liability,which is more than you can say for the majority of Facebook and Twitter users sharing content online. But that expert knowledgewasn’t able to prevent her from being hit with a headline-making lawsuit (later dropped), highlighting the scale of exposure wheresocial media meets the law.
Social media = a billion voicesIn October 2012, Mark Zuckerberg made a personal announcement on his social network that in September, Facebook had reachedmore than one billion monthly active users. As the Facebook co-founder put it, “Helping a billion people connect is amazing,humbling and by far the thing I am most proud of in my lifeâ€. In the same year, Twitter hit over 500 million accounts, Time magazineused Instagram to officially document the effects of Hurricane Sandy, and relative newcomer Pinterest crept into the top 50 mostvisited web sites for the first time. Social technology, no matter which way you look at it, is a hit.
But despite the rampant growth of social media and networking services, what many users fail to grasp is that communicationsshared in public on the net can potentially leave them exposed to legal liability for defamation. If you say something in public – be iton a blog, a forum, on Facebook or Twitter – and it falsely injures the reputation of another, you could easily be sued, provided avalid defence to what you wrote doesn’t apply. In the eyes of the law, social media users, bloggers and online commenters are all‘publishers’, regulated by historical defamation laws that largely applied only to journalists and traditional media interests likenewspapers and magazine companies. This isn’t to say that defamatory communications are always pursued in the courts, but theease of our contemporary access to digital publishing is an unprecedented development in the history of human communication, andthe risk of legal liability is closer than most think.
Mark Pearson, Professor of Journalism at Bond University.
“It’s unlikely, it’s a lightning-strike possibility, but then, so is much of defamation action traditionally in the print media,†saysMark Pearson, Professor of Journalism at Bond University and author of Blogging and Tweeting Without Getting Sued: A GlobalGuide to the Law for Anyone Writing Online. “There are countless more quantities of defamation happening and published thanare actioned. It’s always been a drop in the ocean. I can open almost any newspaper and see potentially defamatory material,particularly as I get away from the mainstream publishers and into suburban and regional press. There’s all sorts of litigious materialbeing published that doesn’t necessarily have a defence. But people either don’t know, don’t care or can’t afford to pursue it, andthat’s the same online now, with gigabytes of such material out there, only some of which is targeted and actioned.â€
Online Defamation: What you need to know - TechLife 2 of 11
So while the chances of being sued are slim, the bigger issue is that so many of us are unwittingly committing these civil wrongs inthe first place. If you’ve ever falsely criticised a friend, colleague or public figure and impugned their reputation in public, it’stheoretically actionable. “I don’t think there are very well-established levels of media literacy in Australia, and I do think that posesa problem when we’ve got the democratisation of publishing platforms and the capacity to publish, but we don’t have widespreadcapacities in terms of media literacy and particularly social media literacy,†says Posetti.
Mark Pearson’s book: a handy read for anyone who wants a comprehensive overview of the legal issues posed by internetcommunications. And written in plain English to boot.
And it’s not just a problem that affects social media users in the mainstream. “Often either lawyers or what you might callacademics or intellectuals let their guard down as well,†Mark Pearson says. “I think all of us, because of the very nature ofsocial media being engaging in a conversation online, let our guard down because we slip into a conversational tone where we’retalking with a group of friends and psychologically we fall into that and forget the safeguards that we use when formally broadcastingor writing a written publication. So the ordinary person, the lay person, is really up against it if they have no background in this areaat all.â€
Hundreds of jurisdictionsIn simpler times, if you defamed someone, the litigation of the matter could be considered a relatively straightforward affair. The courtwould look at where the defamatory communication was published and the laws of that jurisdiction would apply in determiningwhether the defaming party was to be held liable. These days, things are a little more complex. Communications on the internet areeffectively published everywhere; defamatory material contained in a blog or social media update could be downloaded virtuallyanywhere at any time, potentially exposing the publisher(s) in question to the laws of several hundred legal jurisdictions worldwide.
Online Defamation: What you need to know - TechLife 3 of 11
In 2002 the High Court of Australia handed down a landmark decision in Dow Jones v Gutnick, in which the Australian respondentJoseph Gutnick was held to be able to sue for defamation in his home state of Victoria – where his reputation existed – over adefamatory article published online by a magazine based in the United States. Legal representation for the appellant argued that theplace of publication was the US, but the High Court ruled that in the case of material published on the internet, publication ratheroccurs wherever the material is downloaded.
According to Justin Castelan, a Melbourne-based barrister and author of the legal blog Defamation Watch(http://defamationwatch.com.au/), the Gutnick decision had a transformative effect on defamation law and not only in Australia. “Itwas a ground-breaking case. The High Court said, when a person is suing, if their reputation is in Victoria they’re entitled to sue inVictoria, provided people have read [the defamatory communication] in Victoria, because the crucial point is that the place ofpublication is where it is read and understood.†While the case isn’t strictly authority anywhere outside Australia, the decision isfrequently referred to internationally, especially in common law countries such as Canada and England.
“I think it’s fairly widely accepted throughout superior courts in the Western world that people are responsible wherever thematerial is downloaded,†Mark Pearson says. “I don’t want to be a scary bear telling everybody not to use social media. I’m anactive user myself and I think there are huge benefits. And I certainly am not arguing that if somebody publishes something they’regoing to get dragged across the world to face court in some remote country. But I think it’s a reasonable point to make given theamount of international travel people do today, that people should think twice, certainly before publishing something not justdefamatory – but that may well be illegal in a travel destination.â€
The latter point in particular is worth extra emphasis. While the gist of judicial reasoning in decisions like Gutnick is that defamationliability could theoretically attach wherever defamatory material is downloaded, most of the time Australians are effectively safe fromactions for civil defamation in foreign jurisdictions. Unless you possess commercial assets or interests in another country, it’sfinancially impractical for a defamed party to trouble with the expense of suing you there. However, if you end up travelling to anothercountry where a legal action has been brought against you, you could in all reality be arrested at the airport.
“The two that spring to mind because of their popularity for travel for Australians are Thailand and Vietnam,†says Pearson,“both of which have an incredibly poor track record with free expression and have been quite active in pursuing and jailing peoplewho breach publication guidelines.†Examples of the risks travellers face include the case of US-based lawyer and bloggerGopalan Nair, who was jailed in Singapore for criticising a judicial officer, and Harry Nicolaides, an Australian who was jailed inThailand for writings deemed critical of the monarchy.
Old laws, new interpretationsWhile much classic case law regulating defamation hails from a technologically distant era (a significant legislative overhaul ofAustralia’s defamation laws in 2006 didn’t seek to address issues posed by web communication), case by case, common law isslowly adjusting to the legal challenges of social media.
“Judges are applying the traditional laws to new fact situations, and those new fact situations become law themselves. That’s theway it’s always happened, and it’s often been a mistake to write certain new technologies into the law, into legislation, because thesetechnologies can change quite rapidly,†Pearson says. “What we have is a whole series of cases throughout the world,particularly throughout our US/British legal system, that would serve as precedents for our courts, and some within Australia itself.So in recent months, the last year or so, we’ve had important decisions applying the law or breaking new ground with socialmedia.â€
Online Defamation: What you need to know - TechLife 4 of 11
Examples include ACCC v Allergy Pathway and Clarke v Nationwide News, two cases in which the Federal Court held that a partycould be liable as a publisher for comments made by fans on its Facebook page – due to being made aware of the posts and notremoving them (significant decisions for anybody who has responsibility for a web site, blog or social media page). Most recently, theVictorian Supreme Court held in Trkulja v Google that Google could be held liable as a publisher for defamation communicated by itssearch engine results, having failed to act on requests to take down the defamatory material.
“For the law of defamation, the common law, the question of publication has always been very broad, much broader than peoplewould realise,†says Justin Castelan. “Let’s say you wanted to sue for an article written in the newspaper. You can sue theauthor of the article, the journalist, the publisher of the newspaper and the editor, because they’re all deemed to be publishers.â€Strictly speaking, you can even sue the local newsagent, who is also deemed to be a publisher for selling the defamatorycommunication, although newsagents can often claim the defence of innocent dissemination.
Damage ControlIn light of the above, it might seem disturbingly easy to defame people on the internet and social media – and it is – but with the rightapproach, you can avoid putting yourself in hot water. Strange though it might sound, there’s considerable legal wisdom in thechildhood lesson: ‘if you don’t have anything nice to say, don’t say anything at all’.
“I like to take a Zen approach to this,†Mark Pearson says, “and suggest that people think very carefully about what they’regoing to be saying online, not be impulsive or engage in social media if they’re under the influence of some substance, and to pauseand think, ‘If this was being said about me or about someone that I really respect, what would I think of them as a result of it?’ Andnormally you would adapt what you were going to write or be content to have drafted it and not sent it, just so that you’ve at leastexpended that negative energy but haven’t taken the legal risk by firing it off.â€
If you’re an online writer or an avid social media user, it’s also worth having an appreciation of the defences to defamation (see belowfor more info). If you can demonstrate that one applies to what you published, you won’t be in any trouble. “Tell the truth. That’s agood start,†says Justin Castelan. “The defences to defamation claims, there’s a whole raft of them. The basic ones are truth,fair comment or honest opinion.†For those falling into the content manager category (people who run web sites, blogs or socialmedia pages where others have the ability to post comments), be aware that you can be held liable for what others write or post onyour page. If you see something that could be considered legally dubious, don’t hesitate to delete it, especially if someone requestsyou to do so.â€
“If someone is threatening legal action, people should always take legal advice,†Mark Pearson says. “Even though thatmight be expensive, it can finish up being a lot less expensive than having some sort of court order against you. If you yourselfbelieve that you have actually done the wrong thing, and that you have said something false or you can’t substantiate it in any wayand there’s no actual legal action threatened, then you should just apologise and remove the material. But if the person isthreatening legal action, you would first take legal advice before apologising, because lawyers might suggest the best framing of anywords of an apology.â€
On the other hand, if you don’t feel that you’ve done anything wrong (and have received legal advice regarding defences), issuing anapology might not be something you’re interested in. Despite having been on the receiving end of Australia’s first high-profile Twitterdefamation lawsuit, Julie Posetti’s views on the benefits of social media, and what she calls its ‘democratising effect’, remainunchanged.
“It has given people who have felt misrepresented, underrepresented or maligned by the mainstream media an opportunity tocorrect the record, to go directly to journalists and to express their consternation, or to try to redirect journalists through example. It’senabled one-to-one communication on a much broader scale between citizens and politicians who are active on the sites that we’retalking about here, mainly Facebook and Twitter, but also through blogs.â€
“And it’s done the same for consumerism: the consumer watchdog effect of social networking sites. The ability for dissatisfiedcustomers to effect change; I think that’s pretty extraordinary as well. Even right down to the implications for the law, as it currentlyexists, in reference to governing behaviour. There’s an opportunity for pushback there, with individual citizens campaigning on arange of issues. For me, the positives far outweigh the risks, but again there are significant risks and pitfalls which we’re still workingour way through.â€Â
Online defamation 101:
Online Defamation: What you need to know - TechLife 5 of 11
1. You are a publisher
If you post defamatory material in public online or via social media, in the eyes of the law you could be liable as a publisher.Defamation law traditionally focused on journalists and media companies as publishers, but the advent of the internet and socialmedia in particular has made it much easier for ordinary people to legally defame others. A huge amount of defamation occurs everyday, but only a slim percentage of cases are actioned. Check out ‘The elements of defamation’ further down this article.
2. You’re liable where you’re downloaded
In Australia and other countries, a recurring legal principle is that liability for defamation exists where the defamatory material ispublished, and in the case of internet publication, this increasingly means wherever you’re downloaded. There are hundreds of legalsystems in the world and it’s possible you could be sued in many of them for any defamatory comment you post via the web or socialmedia. Practically speaking, this won’t be a problem for most resident Australians, but for businesses with interests in other countriesor frequent overseas travellers, it’s worth bearing in mind.
3. Publisher is defined broadly
In addition to the person who writes a defamatory communication, publisher liability also extends to anyone who reproduces it (sothink twice before you hit that ‘Retweet’ button). Historically, if a defamatory article was published in a newspaper, the journalist, theeditor, the publisher and even the newsagent could variously be held liable as publishers. These days, the same broad liability isbeing held to apply to web sites and Facebook pages, so if someone writes something defamatory on your web page, delete it or youmight be held liable.
4. Tell the truth
There are a number of defences to defamation, many of which revolve around concepts of truth and the public interest. It’s worthremembering that defamation is concerned with ‘false statements’ about a party. In short, if what you say is true (and you candemonstrate the truth of it), then you have a stronger defence against defamation. Check out ‘Defences to defamation’ further downthis article.
5. Get legal advice
Above all, if you’re seriously concerned that you might have defamed someone and legal proceedings are commenced, engage alawyer. This article summarises some of the law surrounding online defamation but it’s not legal advice in itself. “If you’repanicking… it’s a case by case proposition, but get legal advice. That’s the answer,†says barrister Justin Castelan. “If you geta letter of demand from someone, go to a lawyer and take it from there.â€
Â
The elements of defamationDefamation is defined as communication to third parties of false statements about a person that injures the reputation of the personor deters others from associating with the person. In its simplest form, it means to spread a demeaning report about a party that doesthem harm.
For defamation to occur, the plaintiff (the person who claims to have been defamed by another) must be able to prove that threethings have taken place. First, there must have been a communication published to another (a third party, ie. someone other than the
Online Defamation: What you need to know - TechLife 6 of 11
plaintiff). Second, the communication in question must identify the plaintiff (not necessarily by directly naming him or her, but byproviding sufficient detail that the plaintiff can be identified). Third, the communication must defame the plaintiff. This third element issatisfied if the published communication exposes the plaintiff to ridicule, lowers the plaintiff’s reputation in the eyes of other membersof the community, causes people to shun or avoid the plaintiff, or injures the plaintiff’s professional reputation.
Defences to defamationOnce all three of the elements of communication, identification and defamation have been demonstrated, it’s still possible to defeat adefamation action provided the defendant can demonstrate a valid defence, which legally justifies the publishing of thecommunication for reasons of public interest. There are a number of these defences, any of which the defendant must prove. Anon-exhaustive list is provided by the Defamation Act 2005 (NSW), mirrored in other states, including: justification (the defendantproves that the defamatory imputations are substantially true); contextual truth (among the defamatory imputations are contextualimputations that are substantially true); absolute privilege (protected comment issued during parliamentary and judicial proceedings);public documents (the defamatory material is contained in a public document); fair report of proceedings (the defamatory materialwas reported in proceedings in the public interest); qualified privilege (related to public interest); honest opinion (opinion related topublic interest, as opposed to a statement of fact); innocent dissemination (distributing without awareness of defamatory matter); andtriviality (plaintiff unlikely to sustain harm).
Australian defamation legislationThe Australian states and territories enacted uniform defamation legislation in 2006. In NSW, the law is the Defamation Act 2005(NSW), which has its counterparts in the other jurisdictions. While not entirely uniform, this new legislative framework did help tostreamline a much more disparate set of statutes in operation prior to 2006. Like all Australian legislation and much case law, theuniform defamation acts are freely viewable online at the Australasian Legal Information Institute’s (http://www.austlii.edu.au/) website.
(http://www.facebook.com/TechLifer)
Online Defamation: What you need to know - TechLife 7 of 11
How to be a geek (for real)•
Avatar — Im up for it man! So... what next??
Where to go for online movies in Australia•
Avatar — omg! Thank you! do you know how hard it wasfinding a list like this! imam gunna go with …
How does Google Glass work?•
Avatar — nice
Jawbone UP review•
Avatar — Both the dieting and the weight are trackable throughthe App partners on the side link of the App.
0 Comments
Search
More Info
TechLife Magazine(http://www.techlife.net/techlife-magazine)Exclusives (http://www.techlife.net/exclusives)Mag Stuff (http://www.techlife.net/magstuff)
Online Defamation: What you need to know - TechLife 8 of 11
Contact Us (http://www.techlife.net/contact-us)Advertise with us(http://www.techlife.net/advertise-us)
Recent Commentsnadia on Top 10 restaurant apps forfoodies (http://www.techlife.net/2013/05/top-10-restaurant-apps-for-foodies.html#comment-319)Katie Williams on Where to go foronline movies in Australia(http://www.techlife.net/2013/04/where-to-go-for-online-movies-in-australia.html#comment-316)jack420 on Jawbone UP review(http://www.techlife.net/2014/03/jawbone-up-review.html#comment-313)Syed Saheeb Ahmed on How to bea geek (for real)(http://www.techlife.net/2014/03/how-to-be-a-geek-for-real.html#comment-304)davidsven on Sony Smartwatch 2review (http://www.techlife.net/2014/03/sony-smartwatch-2-review.html#comment-298)
Find us on Facebook
TechLife
1,779 people like TechLife.
Facebook social plugin
Online Defamation: What you need to know - TechLife 9 of 11
Do you do your best work at night? We’ve got some handy ideas to help: Apps and gadgets for #NightOwls bit.ly/1eYMTcV #nightowl
TechLife @Techlifer
For fans of military aviation, here's our review of the World of Warplanes multiplayer game: bit.ly/1nrN0xx
TechLife @Techlifer
Expand
Curious about what smart cars of today and tomorrow can do? Check out our feature: bit.ly/1eCYLkZ #smartcar #smartcars
TechLife @Techlifer
Expand
1h
17 Apr
15 Apr
Tweets
()()()
Recommendations
TechLife Magazine - TechLifeOne person recommends this.
Belkin WeMo review - TechLifeOne person recommends this.
Z-Wave Mi Casa Verde Vera 3 review - TechLifeOne person recommends this.
The smart cars of today and tomorrow -TechLife6 people recommend this.
Why I swapped my iPhone for Windows4 people recommend this.
Insteon review - TechLifeOne person recommends this.
Best fitness apps - TechLifeOne person recommends this.
Facebook social plugin
(http://www.futureplc.com/
Top ▲Future is AOP & PPA Digital Publisher of the Year and BMA Media Company of the Year.This site is part of Future plc, an international media group and leading digital publisher. We produce content across five core areas:
TechRadar (http://www.techradar.com/
T3 (http://www.t3.com/
Mac|Life (http://www.maclife.com/
Gizmodo UK (http://www.gizmodo.co.uk/
More... (http://www.futureplc.com/what-we-
TechnologyCVG (http://www.computerandvideogames
PC Gamer (http://www.pcgamer.com/
GamesRadar (http://www.gamesradar.com
Total Film (http://www.totalfilm.com/
More... (http://www.futureplc.com/what-we-
EntertainmentMusicRadar (http://www.musicradar.com/
Guitarist (http://www.musicradar.com/guita
FutureMusic (http://www.musicradar.com/f
Rhythm (http://www.musicradar.com/rhythm
More... (http://www.futureplc.com/what-we-
MusicDigital Camera World
Mollie Makes (http://www.molliemakes.com
Photography Week
The Simple Things (
More... (http://www.futureplc.com/what-we-
CreativeBikeRadar (http://www.bikeradar.com/
Cyclingnews (http://www.cyclingnews.com
TriRadar (http://www.triradar.com/
More... (http://www.futureplc.com/what-we-
Sport & Auto
About Future (http://www.futureplc.com/about/) Jobs (http://www.yourfuturejob.com/) PR (http://www.futureplc.com/news/)
Online Defamation: What you need to know - TechLife 10 of 11
Advertising (http://www.futureplc.com/what-we-do/advertising-solutions/) Digital Future (http://advertising.digitalfuture.com/) Privacy Policy (http://www.futureplc.com/privacy-policy/)© Future Publishing (Overseas) Limited, Beauford Court, 30 Monmouth Street, Bath BA1 2BW. All rights reserved. England and Wales company registration number 06202940. Australian Office:Suite 3, Level 10, 100 Walker Street, North Sydney, NSW 2060 T: +61 2 9955 2677
Online Defamation: What you need to know - TechLife 11 of 11
© 2014 ABC
©2010 ABC
The World Today with Eleanor HallAn hour of current affairs background and debate from Australia and the world every Monday to Friday, 12:10 pm, ABC Local Radio and Radio National.
Landmark case awards damages for Twitter defamation
Samantha Donovan reported this story on Wednesday, March 5, 2014 12:42:00
PETER LLOYD: Twitter users are being urged to re-think what they say after the ruling in a landmark defamation case.
A New South Wales teacher has been awarded just over a $100,000 after a district court judge found false allegations had been made about her online.
It's believed to be the first time a Twitter defamation case has gone to a full trial in Australia.
Samantha Donovan reports.
SAMANTHA DONOVAN: Teachers are no strangers to criticism.
But after Andrew Farley took to Twitter and Facebook to make his thoughts known about a teacher at his old school, Australian law entered newterritory.
Sydney barrister Sandy Dawson acted for the teacher, Christine Mickle, who took her case to the District Court of New South Wales.
SANDY DAWSON: She was a very popular and very well-regarded teacher. The comments that were published were very, very critical and really quitenasty. In particular she was very upset by the suggestion that the defendant's father, who had been a teacher at the school, had left the school in someway because of something that the plaintiff had done. The teacher took great umbrage at what had been said, was very badly affected by it and becauseof the social media which the defendant used to communicate what he wanted to say, the publication spread very quickly and became very well knownvery quickly in the community.
SAMANTHA DONOVAN: Sandy Dawson says the remarks of Judge Michael Elkaim should serve as a warning to Twitter and Facebook users.
SANDY DAWSON: The judge stressed at the end of the judgement that defamatory publications made on these forms of social media do spread and hesaid they are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use ofthis type of communication and I have taken that into account in the assessment of damages that I've previously made.
So you can see that courts are well aware of the way in which social media publications spread.
SAMANTHA DONOVAN: Do you think because they're fairly new media, Twitter in particular, that people are taking a little while to get their headsaround the fact that they can quite easily defame someone?
SANDY DAWSON: I think that's right. I think people look at Twitter and Facebook as almost an area that's immune from legal regulation. They think ofthese publications that they make as temporary or disposable publications, which once they're made disappear into the ether much like a privateconversation over a cup of coffee. But the reality is they are communications in a permanent form and because of the way social media works and thewhole point of it is to communicate and to react and respond to other people's communications; an initial publication can spread like wildfire and causeimmense damage to somebody particularly whereas was the case here, the statements are just simply untrue.
SAMANTHA DONOVAN: Mr Dawson believes it's the first case in Australia to award damages for defamation on Twitter and Facebook.
SANDY DAWSON: It's a warning if you like to users of social media that the consequences of posting something or tweeting something are the same asif you put it in a newspaper or broadcast it across a television network and the judge has significantly in this case taken into account the nature of socialmedia in assessing damages.
The compensatory damages award of $85,000 is a pretty significant amount of money for publications on Twitter and Facebook that most people wouldregard as immune from legal regulation.
SAMANTHA DONOVAN: Do you think we're going to see many more defamation cases flowing from Facebook and Twitter communications?
SANDY DAWSON: Look, I think that's inevitable because it's the way people now communicate. I think there's a chance that the number of cases will,in fact, increase because a lot of the things that people would say to each other in conversation, which by their nature are very difficult to trap, in the eraof social media, those conversations are taking place in written form and they are in permanent form for the purpose of the law of defamation.
PETER LLOYD: That's the Sydney barrister Sandy Dawson ending Samantha Donovan's report.
The World Today - Landmark case awards damages for Twitter de... 1 of 1
We use cookies to give you the best online experience. By using our website you agree to our use of cookies in accordance with our cookie policy. Learnmore here . Close Me
News Alert | Login | Register
TOPICS | REGIONS | CONTRIBUTORS | MONDAQ SERVICES
Search for Articles
Home > Australia > Corporate/Commercial Law
Employment | Real Estate | Commercial | Energy | Finance | Government | IP | Litigation | Tax | Privacy | Media & IT | Insurance | More
Last Updated: 26 February 2014Article by Dan Brush and Adam MeyerCBP Lawyers
Do you haveMutualContacts withthe Author
Do you have a Question or Comment?Click here to email the Author
Interested in the next Webinar on this Topic?Click here to register your Interest
Dan Brush
CBP Lawyers
Email Firm
View Website
More from this Firm
More from this Author
Dan Brush
Do you haveMutualContacts with theAuthor
Adam Meyer
Australia: Defamation online: legal perils of social media postings
0
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
Contributor
Authors
More Popular Related Articles on Corporate/Commercial Law from Australia
What happens if a directors signature is forged on a contract?Sparke Helmore LawyersIs a contract validly executed when it is later revealed that one of the signatures was forged?
Can a document forged on behalf of a director bind a company?Kott GunningThe guarantee given to ANZ seemed to have been signed by directors Robert and Valdo but Valdo's signature was a forgery.
Damaged goods: High price paid for breach of warrantyNorton Rose Fulbright AustraliaThis majority High Court decision confirms the manner in which damages are to be calculated for breach of contract.
To disclose or not to disclose? Some legal guidelines regarding disclosure of litigation to the marketClayton UtzDirectors and officers should review insurance and indemnity arrangements to ensure that they are adequately protected.
Agreements make the world go round - except when they cause disputes!Clayton UtzA clause in an agreement setting out that parties agree to be bound is a wise business practice.
10 tips for effective contractingSparke Helmore Lawyers
Defamation online: legal perils of social media postings - Corporat... 1 of 2
Contact Us | Your Privacy | Feedback
© Mondaq® Ltd 1994 - 2014All Rights Reserved
Contract drafting tips for universities.
Significant proposed changes to the PPSA: What these may mean to your businessKott GunningThe article explores the impact of the proposed changes, particularly on small to mid-sized equipment hire businesses.
Is a finance lease ever a PPS lease? … the first question arising from the Maiden Civil CaseJackson McDonaldWhat matter is having a "perfected" security interest in personal property not "title" to the personal property.
Defamation online: legal perils of social media postings - Corporat... 2 of 2
Print this article | Close this window
The tweet that cost $105,000Michaela WhitbournPublished: March 6, 2014 - 9:33AM
A NSW school teacher has made legal history after a former student was ordered to pay $105,000 for defaming her on Twitter and Facebook.
In the first Twitter defamation battle in Australia to proceed to a full trial, District Court judge Michael Elkaim ruled that former Orange High School student Andrew Farley shouldpay compensatory and aggravated damages for making false allegations about music teacher Christine Mickle.
Judge Elkaim said the comments had had a "devastating effect" on the popular teacher, who immediately took sick leave and only returned to work on a limited basis late last year.
"When defamatory publications are made on social media it is common knowledge that they spread," Judge Elkaim said in an unreported judgment in November.
"They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication."
Mr Farley, who was 20 at the time of the judgment, is the son of the school's former head of music and arts, who was described as a "gentle man who had a number of health issues".Young Mr Farley graduated from high school in 2011 and had never been taught by Ms Mickle.
In November 2012, he posted a series of defamatory comments on Twitter and Facebook about Ms Mickle, who took over his father's job on an acting basis after the senior teacherleft in 2008 for health reasons.
"For some reason it seems that the defendant bears a grudge against the plaintiff, apparently based on a belief that she had something to do with his father leaving the school," JudgeElkaim said.
"There is absolutely no evidence to substantiate that belief."
Judge Elkaim said his impression of Ms Mickle in the witness box was "of a very honest woman who had been terribly hurt both by the comments in general but perhaps moreparticularly by the suggestion that she may have been responsible for any harm, ill health or effect of any of her actions on the defendant's father."
There was evidence that, in the absence of the comments, the senior teacher would have continued teaching as she had before "until she reached the age of 65 which is in about sevenyears' time".
Judge Elkaim ordered Mr Farley to pay $85,000 in compensatory damages.
He also ruled that the young man's conduct in response to the case warranted an additional $20,000 in aggravated damages.
Mr Farley ignored a letter from Ms Mickle's lawyers in November 2012. He removed the comments and apologised "unreservedly" only after they wrote to him again in December.
Judge Elkaim said the apparent sincerity of the apology was contradicted by Mr Farley when he attempted to argue in his defence that the comments were true.
He said the defence had "no substance" and was later struck out.
"The defence of truth when it is spurious is particularly hurtful to a person who has been the subject of such unsubstantiated allegations," Judge Elkaim said.
The judge added that Mr Farley appeared to have "abandoned his interest in the proceedings" and did not appear at the trial.
The decision is the first defamation case involving Twitter to go to trial, although earlier decisions have considered defamatory comments on Facebook.
Liberal pollsters Mark Textor and Lynton Crosby's Federal Court case against former federal Labor MP Mike Kelly is still at the pre-trial stage, while prominent columnist andauthor Marieke Hardy settled a case in 2011 for erronesouly "naming and shaming" a Melbourne man on Twitter as the author of a hate blog.
Media law expert David Rolph, an associate professor at the University of Sydney Law School, said: "This case just reinforces that even private individuals are subject to defamationlaw on social media and should be careful about what they say."
This story was found at: http://www.smh.com.au/technology/technology-news/the-tweet-that-cost-105000-20140304-341kl.html
Print Article: The tweet that cost $105,000 1 of 1
Related Links
Things people say
What if someone is gossiping about me, or telling embarrassing old stories about me or defaming me?
Unless the gossip or old stories amounts to defamation of you then you cannot take legal action against gossip.
What is defamation?
No simple definition exists but generally you have been defamed when words have been spoken or written which:
injure your reputation in the eyes of ordinary people in the communityinjure you in your trade or profession (eg lead you to get less work) orare likely to result in you being shunned, avoided, made fun of, or despised.
Defamation occurs when somebody speaks in a defamatory way to another person or when defamatory material is published. Publication can include on the internet, forexample on Facebook. It is only defamation if the person who receives or hears the defamation understands that it is defamatory.
A claim for defamation is a complex, time consuming and expensive legal matter.
What can I do if I am harassed, threatened or defamed online?
You do not have to put up with being harassed or threatened or defamed online. You should take action to try to stop it.
You can ask the person to remove the comments or information you do not like. If they refuse you can contact the social networking site and ask them to remove theinformation. If you are a school student and the person who made the comments is also at your school, you can tell a teacher, the principal or your school counsellor. They maybe able to help have the information removed.
Some harassment or threats may break criminal laws. You may have grounds for getting a restraining order- see Misconduct restraining orders - information andViolence restraining orders -information. Also see below under the heading What can I do if I am receiving threats or verbal abuse?
You should get legal advice if you believe you have been defamed online.
What if I just want some information about me posted on a social networking site removed?
If there is a photo or information that you want removed you can try what is suggested in paragraph two under the previous question.
Are there defences to defamation?
There are defences to defamation. A defence is a legal reason why the statements can be made without being defamatory. For example:
Privileged comments or publications are not defamatory. Privilege occurs in situations when the law protects people's rights to express themselves such as a speech inparliament, or statements made in a court of law.Some situations are partly protected by privilege, eg reasonable comments about work performance as a referee.It is a defence to publication if it can be proved the defamatory material is substantially true.
The law in Western Australia encourages resolution of disputes about publication of defamatory material without going to court.
Even if defamation is proven in a court it does not mean the court will award you much or anything in damages. Get legal advice before starting any court action.
Do time limits apply to take legal action?
Yes strict time limits apply. Get legal advice.
Can defamation be a criminal offence?
In Western Australia there is an offence of criminal defamation to cover the publication of some defamatory matter about another living person.
What can I do if I am receiving threats or verbal abuse?
You should report threats of violence, whether made over the phone, in writing or in person, to the police.
In some circumstances where you are being threatened or suffering abuse you may be able to take out a misconduct restraining order or a violence restraining order.For more information see Misconduct restraining orders - information or Violence restraining orders - information.
What if the abuse is racial?
The information under the previous question may apply if the abuse includes threats of violence.
If it happens in the areas of employment, education, and/or accommodation it may be racial harassment that is unlawful under the Equal Opportunity Act 1984 (WA). It is racialharassment when a person threatens, abuses, insults or taunts another person because of their race, and that other person is disadvantaged, or has reasonable grounds forbelieving that they will be disadvantaged, by taking objection.
If the abuse is conduct intended or likely to incite racial animosity or racial harassment it may be a criminal offence.
What can I do if someone is using offensive language around me?
As it is an offence to use insulting, offensive or threatening language in public you can call the police.
If it is being used at home you may be able to get a violence restraining order. Get legal advice.
Being treated fairly - Things people say 1 of 2
For more information on unlawful racial harassment contact the Equal Opportunity Commission WAon (08) 9216 3900 or 1800 198 149.Contact the Department of Education WA on (08) 9264 4111 or go to its website for information for parents and students on bullying at school.At the DBCDE website you can download a Cybersafety Help Button free application. It provides internet users, particularly children and young people, with easy online access to cybersafety information and assistance available in Australia. It offers counselling,reporting and educational resources to assist young people deal with online risks including cyberbullying, unwanted contact, scams and fraud, and offensive orinappropriate material.
Go to Bullying. No Way! an educational website for Australian school communities and the general public.The Australian Human Rights Commission (AHRC) and ReachOut.com have developed factsheets for young people on how to deal with bullying, includingcyberbullying, workplace bullying, and being supportive for people who are being bullied. These are available online. The AHRC also has a complaint handling servicethat may investigate complaints of discrimination, harassment and bullying. It can be contacted on 1300 656 419.The ThinkUKnow and Cybersmart websites have information for parents, carers, teachers and young people about internet safety and dealing with cyberbullying.See also Privacy and freedom of information.Visit the The Line an online magazine designed by young people for young people with information on respectful relationships.Visit the Lawstuff website (click on WA) for information on young people's rights on a range of topics.
Last reviewed: 22/03/2013
Last Modified: 22/11/2013
DisclaimerThe material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate,however does not accept responsibility for any errors or omissions.
Being treated fairly - Things people say 2 of 2
News
Herald SunNews
Defamation laws deliver a strange sort of justiceby: James CampbellFrom: Sunday Herald SunMarch 09, 2014 12:00AM
IN NSW, the worlds of Twitter and Facebook have been rocked by Australia’s first defamation payout for injudicious words dispatched intocyberspace.
Last November (for some reason the case was only reported last week), District Court Judge Michael Elkaim awarded $105,000 to Orange High School musicteacher Christine Mickle, who had taken exception to Facebook posts and tweets from a former pupil at her school, Andrew Farley.
What he said about Mickle was not recorded in the judgment but it is clear Farley didn’t help his cause by apologising for his remarks, then attempting to justifythem as being true before finally withdrawing them unreservedly.
Nor is the judge likely to have been impressed by his no-show at the trial.
But even allowing for all that, it strikes me that $105,000 is a lot of sugar to be awarded for being defamed on a Twitter account that, if Farley’s later interview isto be believed, had only 60 followers, and a Facebook page with only 50 friends, especially as one imagines the two groups were largely comprised of thesame people.
Last week’s media reports about the case told how it was the first Twitter and Facebook defamation matter to make its way to trial and made much of themouth-watering size of the damages awarded. But what interested me was that the matter had made its way to court even though it must have been clear toMickle that even if she won, she would have little chance of seeing a cent as Farley, now 20, says he is bankrupt.
If that is the case, not only will Mickle not see her damages, it is likely her lawyers will be pressing down hard upon her for their fees. So aside from thesatisfaction of having her reputation cleared by the judge, it is hard to see what she hoped to achieve.
Impecunious parties to defamation cases are not unusual — indeed from my conversations with defamation lawyers I get the idea they are extremely common— but usually it is the party doing the suing who has no money, not the defendant.
This is because courts are extremely reluctant to grant orders for security for costs in defamation cases — that is, showing you will be able to pay the otherside’s legal bills if your case is unsuccessful.
Apparently the courts take the view that everyone is entitled to their day in court regardless of their ability to pay. Which is tough if you are stuck with a legal billyou can’t recover after defending yourself in court.
It also seems unfair that not-for-profit groups can make use of defamation laws and then dissolve themselves without having to pay a penny if the case goesagainst them. This last quirk of our legal system means that many defendants in defamation cases have no choice but to settle the proceedings and pay outwhen they are sued regardless of whether they would win if it ever reached court.
Take, for example, the case of the Victorian Environment Minister Peter Walsh, who has just written his second cheque to an environment group displeased atthings he had said. Or rather it is we the taxpayers who have written the cheque for his words.
Perhaps the environmentalists had a point, maybe the greenies had a snowflake’s chance in hell of winning. It didn’t matter. Even if Walsh, with the backing ofthe Victorian taxpayer were vindicated in court, all that would have happened is that we would be left with a giant legal bill.
One of the environment groups that Walsh has paid already has a giant legal bill hanging over it from an earlier failed case against VicForests overLeadbeater’s possum. It is easy to argue that Walsh ought to have paid up himself, but that is a different debate. It doesn’t change the fact that it is manifestlyunfair that one side stood to lose thousands of dollars whatever happened while the other didn’t.
What is even more unfair about the law as it stands at the present is that if a green group were to wrongly accuse a corporation of some beastly practice thatwere to cause it to lose business, it wouldn’t be subject to defamation law. In the eyes of the law in Australia, a tiny protest group may have a reputation thatmay be defamed, but not, say, McDonald’s.
As a journalist I would prefer there were no defamation laws, as is effectively the case in America, but if we are going to have them, then we need to find a wayto make them fairer to both sides.
google +
Top Stories
Pies player spared jail over nightclub attack
Share
Share
Share
Share
Share
Share
Defamation laws deliver a strange sort of justice | Herald Sun 1 of 2
David RolphAssociate Professor of Media Law at University ofSydney
7 March 2014, 3.03pm AEST
Teacher defamation highlights socialmedia’s legal perils
AUT HOR
Last November, a young man was ordered by a NSW court to pay A$105,000 in damages fordefaming a teacher at his former school on Twitter. The decision, which only came to lightearlier this week, should serve as a reminder to all users of the legal risks involved in usingsocial media.
Judge Michael Elkaim ordered Andrew Farley to pay Christine Mickle $85,000 incompensatory damages and $20,000 in aggravated damages for a number of tweets Farleysent to his followers. The judgment does not repeat exactly what was said about Mickle toreduce any further damage to her reputation.
The case is the first Twitter defamation battle to be litigated to final judgment in Australia. Ithighlights a challenge for future reform of Australian defamation laws to make them moreprotective of free speech, and not just in the online environment. As it stands, defamation lawin Australia is pervasive and is not as protective of free speech as some people assume.
This is not the first time that someone has sued for defamation arising out of a tweet inAustralia. Media personality Marieke Hardy settled a defamation claim with Joshua Meggittafter she wrongly identified him as the person behind a “hate blog” directed at her.
Prominent Liberal Partypollsters Lynton Crosby andMark Textor have also starteddefamation proceedings in theFederal Court of Australiaagainst former Labor MP MikeKelly over a tweet accusingthem of engaging in “pushpolling”.
Twitter defamation cases arestarting to become morecommon around the world. Inthe UK, the late LordMcAlpine sued Sally Bercow,the wife of the Speaker of theHouse of Commons, for a tweet that Justice Tugendhat found meant that McAlpine was apaedophile who had sexually abused boys living in care. Bercow ultimately settled theproceedings.
Former New Zealand cricket captain Chris Cairns successfully sued Lalit Modi, a former IndianPremier League commissioner, in a UK court over a tweet which suggested Cairns had beeninvolved in match-fixing. Cairns was awarded £90,000 damages.
Social media users should be careful about posting nasty comments online, after a NSW teachersuccessfully sued a former student at her school for defaming her on Twitter. shutterstock
Liberal pollsters Lynton Crosby (pictured) and Mark Textorhave launched legal action against a former Labor MP afterhe sent a tweet the men argue was defamatory AAP
Teacher defamation highlights social media's legal perils 1 of 2
Cases of defamation by tweet are likely to increase in the years to come. Yet defamation law isnot foremost in people’s minds when they tweet. Twitter is an instantaneous form ofcommunication, and some people use it in a disinhibited way, at their own peril.
But Twitter is like every otherform of communication:defamation law applies to it.Defamation law does not justapply to mass media, likenewspapers, radio andtelevision. It applies to everyform of communication, fromprivate conversations tonational broadcasts andbeyond. Whenever oneperson is talking aboutanother person in front ofother people, there is a risk ofdefamation.
There is no minimum requirement as to the number of people you are speaking to beforeliability for defamation can arise. Talking about a person to another is sufficient, so it does notmatter how many – or how few – followers you have on Twitter. Defamation can still occur,although the number of followers you have will be relevant to how much damage to reputationis done, and therefore how much you might have to pay in compensation.
Australian defamation law favours people suing, rather than people being sued. There are arange of defences you can rely on if you are sued or threatened with a defamation claim. Themost important ones are truth and comment, but you have to prove what you have said is trueand, if you are making a comment, it has to be based on fact. In practice, these defences canbe difficult to establish.
Most people, of course, do not sue for defamation. But every communication carries a risk.The risk can usually be managed because people ignore what has been said about them oraccept it as part of free speech. They may also be unaware of their rights or do not think it isworth the time, energy and resources to pursue the matter in court.
Taking down the tweet and apologising usually works. Suing for defamation, like all litigation,is expensive. But, as Mickle v. Farley shows, if people are sufficiently upset by what has beensaid about them online, they do have legal rights they can exercise.
Towards the end of his judgment in Mickle v. Farley, Judge Elkaim makes the point that unlikemass media outlets – where you have circulation figures or the ratings to inform you – it isdifficult to know with social media platforms how big the audience is.
Social media platforms like Facebook and Twitter make it easier for people to share orretweet. This means that it is easy for people to spread defamatory material and also difficultfor people to know how far and wide their reputations have been damaged.
In the current environment, the best advice is to think before you tweet, bearing in mind thatwhat you tweet can be retweeted by your followers and can be found by online searches.
Defamation law applies to all forms of communications,including social media www.shutterstock.com
Teacher defamation highlights social media's legal perils 2 of 2
Defamation
What is ‘defamation’?If somebody publishes or spreads false information about you, your reputation might be damaged. This iscalled ‘defamation’, and it is against the law. The law protects your reputation by not allowing falseinformation about you to be published. If it is too late, and the information has already been published,you can sue the person who has defamed you and the court may award you damages (money) tocompensate you for the damage done to your reputation.
When will something be ‘defamatory’?First, at least one person (other than the person who is being defamed) has to see or hear the falseinformation.
Second, the material must be such that if an average person saw or heard, it, that person would thinkless of you. For example, it can be defamatory for someone to:
say you are dishonest or disloyal,ridicule you,accuse you of committing a crime, orsay you have a disease.
It may also be defamatory for someone to imply something negative about you.
What if you have been defamed?You can sue the person responsible for defaming you, and you can also sue anyone involved inpublishing the false information (for example a publisher or a newspaper).
If the court finds that the information was false and defamatory, you may be awarded money tocompensate you for damage to your reputation, your hurt feelings and any economic loss you havesuffered because of the defamation.
If you believe that you are about to be defamed, you can bring an urgent court action to stop the materialfrom being published.
If you believe you have been defamed and you want to take the matter to court, you should get theadvice of an experienced lawyer, as defamation law is complicated.
What are other ways of dealing with defamation?You can approach the publisher/author directly and request that they do not publish or write thedefamatory material.
If the material has already been published, you may:
do nothing,ask for an apology, orask the publisher to publish an apology or clarification.
Defences to defamationPublishing something which might seem defamatory won’t be against the law if:
the information is substantially true,the information is published with the consent of the person being defamed, orthe information wasn’t very important and it is unlikely that the person’s reputation will actually bedamaged.
This page was last updated October 2009.
What is ‘defamation’?If somebody publishes or spreads false information about you, your reputation might be damaged. This iscalled ‘defamation’, and it is against the law. The law protects your reputation by not allowing falseinformation about you to be published. If it is too late, and the information has already been published,you can sue the person who has defamed you and the court may award you damages (money) tocompensate you for the damage done to your reputation.
In This Topic Other Topics
Send your questions toLawmail
Can't find the information
you are looking for? Youcan send a question
to Lawmail and an answer
can be sent to you in 7
days.
Go to Lawmail
This State Change State Topics » Defamation
Lawmail Topics News CourtStuff Legal Help About Us Search
Lawstuff Australia - Know Your Rights - - Topics - Defamation 1 of 2
Disclaimer Privacy Policy Contact Us About Us Username: Password:
When will something be ‘defamatory’?First, at least one person (other than the person who is being defamed) has to see or hear the falseinformation.
Second, the material must be such that if an average person saw or heard, it, that person would thinkless of you. For example, it can be defamatory for someone to:
say you are dishonest or disloyal,ridicule you,accuse you of committing a crime, orsay you have a disease.
It may also be defamatory for someone to imply something negative about you.
What if you have been defamed?You can sue the person responsible for defaming you, and you can also sue anyone involved inpublishing the false information (for example a publisher or a newspaper).
If the court finds that the information was false and defamatory, you may be awarded money tocompensate you for damage to your reputation, your hurt feelings and any economic loss you havesuffered because of the defamation.
If you believe that you are about to be defamed, you can bring an urgent court action to stop the materialfrom being published.
If you believe you have been defamed and you want to take the matter to court, you should get theadvice of an experienced lawyer, as defamation law is complicated.
What are other ways of dealing with defamation?You can approach the publisher/author directly and request that they do not publish or write thedefamatory material.
If the material has already been published, you may:
do nothing,ask for an apology, orask the publisher to publish an apology or clarification.
Defences to defamationPublishing something which might seem defamatory won’t be against the law if:
the information is substantially true,the information is published with the consent of the person being defamed, orthe information wasn’t very important and it is unlikely that the person’s reputation will actually bedamaged.
This page was last updated October 2009.
Lawstuff Australia - Know Your Rights - - Topics - Defamation 2 of 2
Defamation in Australia
In this special additional chapter of The News Manual Online, we look atdefamation in the Australian context. Much of the text is an abbreviatedversion of that in Chapter 69: Defamation -what you cannot do and Chapter 70:Defamation - what you can do, so you might want to read those first. Thischapter, however, is more specific about the application of defamation laws inAustralia.
______________________________
What is defamation?
At its simplest, defamation is to spread bad reports about someone which could dothem harm.
The verb is to defame. You can defame someone if you say something false about themwhich spoils their good reputation, which makes people want to avoid them or whichhurts them in their work or their profession.
To defame someone, you do not have to make up false things yourself. You mightdefame a person by repeating or replaying words spoken by someone else, for examplean interviewee. It is no defence to claim that you were only quoting someone else. Ifyou print or broadcast something defamatory, you could be taken to court, along withyour producer, your editor or station manager and the person who said the words in thefirst place.
Before January 2006, defamation varied from state to state across Australia, but nowthere are Uniform Defamation Laws which are similar across all states and territories.The uniform laws adopted and adapted a number of statutory provisions from old lawsbut still retain the basic principles of common law, which traditionally definesdefamation as:
The publication of any false imputation concerning a person, or amember of his family, whether living or dead, by which (a) thereputation of that person is likely to be injured or (b) he is likelyto be injured in his profession or trade or (c) other persons arelikely to be induced to shun, avoid, ridicule or despise him.
Publication of defamatory matter can be by (a) spoken words oraudible sound or (b) words intended to be read by sight or touchor (c) signs, signals, gestures or visible representations, and mustbe done to a person other than the person defamed.
If a person thinks that you have defamed them and takes you to court, they have toprove that three of these things have happened:
That the words were capable of a defamatory meaning as understood byordinary members of society. Defamatory meaning could be anything whichharms the person, in their reputation, their business or in the way other peopletreat them. The law does not say that the plaintiff must show actual proof ofbeing harmed; it is enough that the false statement could have led to harm.
That the words identify him as the person defamed. It is not necessary that heshould have been specifically named. If he can show the court that a reasonableperson would take the words to refer to him, he will probably have a good case.Groups of people (such as small companies or not for profit associations) cansue for defamation if they can demonstrate that the words identified them as agroup.
That the words or pictures have been published, that is heard or seen by a thirdperson. The first person is the one talking or writing (you), the second person isthe person being talked or written about (the plaintiff), the third person isanyone else who may hear or read the offending matter (such as a reader orlistener). There is no civil defamation if the words, however bad or untrue, arespoken or written only to the person about whom they are made.
^^back to the top
Who can sue?
Under the old system of individual state laws, almost anyone or any organisation orcompany could bring an action for defamation. However, under the Uniform DefamationLaw, corporations with 10 or more employees cannot sue. However, be warned thatindividuals or groups of individuals employed by or associated with that corporation -such as company directors, CEOs or managers - can still sue if they are identified bythe publication.
Not-for-profit organisations can still sue for defamation, no matter how manyemployees or members they have.
^^back to the top
Defences
It may seem that the laws of defamation are heavily against the media, but there areseveral defences which you can use to keep out of court or, if you are taken to court, tokeep you from losing the case. Under the law, you as the publisher or broadcaster haveto provide the evidence to support any of the following defences.
Truth
Truth (which is also called justification) is probably the best defence. Formerly in somestates (such as NSW, Queensland, Tasmania and the ACT) truth was only a defence ifyou could prove that a ‘public interest’ was served by publishing the defamatory words.This requirement has been dropped from the Uniform Defamation Law and now there is
Defamation in Australia
What is defamation?1.Who can sue?2.Defences3.Malice4.How is defamation punished?5.
Media law & ethics in Australia
Media law & ethics inAustralia - Introduction
1.
Defamation in Australia2.Contempt & court reporting inAustralia
3.
Copyright in Australia4.Vilification in Australia5.National security andanti-terrorism in Australia
6.
Looking for something?
A quick way to find what you'relooking for on media law & ethicsin Australia is through the OZINDEX. Click here:
Defamation in Australia 1 of 4
a defence if the defendant can prove that the defamatory imputations aresubstantially true.
Privilege and protected reports
The law recognises that there are times when there has to be complete freedom ofspeech without any risk of claims for defamation. The two main examples are inparliaments and courts. MPs speaking in parliament or people speaking in courtproceedings are protected from defamation by absolute privilege which means theycannot be sued whatever they say or whatever their motive for saying it. Your reports ofsuch proceedings are usually protected by qualified privilege. Protection only usuallyapplies as long as your report is honestly broadcast for the information of the public orthe advancement of education and is reasonable. For example, does it distinguishbetween suspicions, allegations and proven facts?
Because common law does not protect freedom of speech in other situations, theuniform law has extended the protection of privilege to cover reports publishedreasonably of a whole host of public events, functions and bodies ranging fromtribunals and commissions of inquiry to official documents kept as public records, suchas Hansard or land titles. Reports published reasonably of meetings of local councils areusually protected, as are reports of public meetings dealing with matters of publicinterest.
The acts of each state contain Schedules of bodies and publications to which absoluteprivilege apply. In Victoria you can find the Act and Schedules at:http://www.austlii.edu.au/au/legis/vic/consol_act/da200599.txtThe NSW Act is very similar at:http://www.austlii.edu.au/cgi-bin/download.cgi/download/au/legis/nsw/consol_act/da200599.rtf
Replies to a public attack may also be protected by qualified privilege, as long as thereply is restricted to the specific matter of the original accusation.
Honest opinion
To use the defence of honest opinion you do not need to prove the truth of yourcomment. In some cases this is not possible, especially if it is an opinion rather than afact. You only need to convince the judge or jury that your comments were yourhonestly-held opinion and that it was:
clearly a matter of opinion and not a statement of fact andit related to a matter of public interest andit was based on ‘proper material’ (i.e. substantially true or based on privilegedmaterial)
The defence can be defeated if the plaintiff can prove that the opinion was not honestlyheld.
Political debate
Two rulings by the High Court introduced a new defence based on what the judges sawas an implied freedom of speech in the Constitution. The High Court decided (by amajority decision) that in order for democracy to work, we must be allowed to saydefamatory things about people engaged in political debate without fear of being suedif they prove to be untrue.
The defence is similar to the so-called "public figure defence" available in the UnitedStates, but only applies in cases of genuine political discussions (which the High Courtleft lower courts to define) and it cannot be used to defame people simply because theyare in the public eye.
The High Court in the Lange case further defined the conditions under which thisdefence can be used. It said the matter must be on a government or political issue,must not be motivated by malice (which we explain later) and publication must bereasonable. To prove reasonableness, you will have to prove:
You had reasonable grounds for believing it was true,You took proper steps to check the accuracy of the material,Where practicable, you sought a response from the person defamed.
Innocent dissemination
Journalists occasionally defame someone without knowing or intending it. In such asituation, you might be able to use the defence of innocent dissemination (sometimescalled unintentional defamation).
Ethically, broadcasters or publishers should be committed to correcting unintentionalmistakes which might do someone harm so will probably issue a suitable correction andapology. Because publishing a correction and apology is admitting that you did defamethe person concerned, you must always get advice from the your organisation's lawyersbefore doing it.
The Uniform Defamation Law has quite detailed provisions for settling defamationmatters through mutual agreement between plaintiff and defendant, without having toresort to long and costly court cases. Your organisation's lawyers should be wellinformed of these provisions for a reasonable settlement. Consult them.
Triviality
It is a defence if the defendant can prove that the circumstances of the publicationwere such that the plaintiff was unlikely to sustain any harm.
The plaintiff agreed to publication
You cannot defame someone if they have given their consent for you to publish orbroadcast the defamatory material. Consent usually means that they said: "Yes, youcan use those words." This law stops people tricking journalists into publishingdefamatory material so they can later sue. You may also have a defence if, having beentold exactly what was to be said, the plaintiff made a statement explaining his side,and that statement was included in your report.
The matter has already been judged
It is a principle of common law that courts will not hear a second case based on thesame complaint against the same defendant. If you have been cleared already, theplaintiff cannot have a second try using the same imputation. However, if you repeatthe words again in broadcasts after court proceedings have started, this would be aseparate publication and could result in another action. Beware also of repeatbroadcasts; these will be counted separately and may offer a plaintiff a second chance
Defamation in Australia 2 of 4
of suing for defamation.
The plaintiff has died
An action for defamation is a personal action. Dead people cannot sue for defamation;neither can an action begun by a plaintiff be continued by his children or family if hedies before the case comes to court. The action dies with him.
There is, however, provision for the relatives of a dead person to sue for defamation ontheir own behalf if they are defamed by what you say about their dead relative. Formore on this, go to Chapter 69: Defamation - what you cannot do.
The statute of limitations has expired
The Uniform Defamation Law requires that a plaintiff must commence proceedings fordefamation within a year of publication or broadcast. However, courts may extend thisto up to three years if the plaintiff can demonstrate there were good reasons why theycould not start the action within a year.
Apologies and resolution of civil disputes without litigation
These are not, strictly speaking, defences. However, as mentioned earlier, the law laysdown some quite specific mechanisms by which apologies can be accepted andcomplaints about defamation can be resolved without resorting to the courts. This is, ofcourse, a matter for your newspaper or broadcasting company to decide and thereforeyou should obtain legal advice before such a course of action is started.
^^back to the top
Malice
One final warning about the legal concept of malice:
To use the defences above you must usually show that publication was made "in goodfaith, without ill-will". Ill-will is usually referred to in law as malice, and includes anydishonest or improper motive. For example, to broadcast a critical comment to getrevenge would be seen as malice. If the court decides that you acted with malice, youwill lose your defence and could face a charge of criminal defamation, which can bepunished by a fine or imprisonment.
^^back to the top
How is defamation punished?
Defamation is usually a civil offence, although it can be a criminal matter under specialcircumstances.
Civil defamation
Most complaints of defamation are dealt with under civil law. That means that cases goto a civil court and are punished by awarding money (called damages) against theperson found to have committed the offence. In civil defamation, the principle is thesame as for someone who has been physically injured as a result of someone else'sactions, either through carelessness or a planned attack.
Under the uniform law, it is usual for juries to determine whether defamation took placeand whether the publisher or broadcaster has a defence. If defamation is proved andthere is no acceptable defence, the judge will decide how much harm has been doneand express that in the amount of damages they award. There are several kinds ofdamages:
General or compensatory damages, which a court may award for a person'sloss of reputation, shame or hurt feelings. Under common law, once the courthas found that he has been defamed, the plaintiff does not have to prove thatactual harm has been done. General damages do not have to be large sums ofmoney. If a judge or jury finds that you have defamed the plaintiff but that noreal harm has been done, the plaintiff may be awarded nominal damages of afew dollars. Nominal damages may also be awarded if the court feels that youhave been only slightly at fault or that the plaintiff was in some way responsiblefor the defamation in the first place.Special damages compensate for any loss of business or earnings the plaintiffmay have suffered as a result of the defamation. These could also include anymoney the plaintiff has spent as a result of the defamation, for example insending letters to clients denying the allegations.Aggravated damages can be awarded if the court thinks that the defamationwas deliberate, possibly out of ill-will or any other improper motive (usuallyreferred to as malice, which we discussed earlier). For example, if you knew thatwhat you were publishing was false and defamatory, but went ahead with thestory to stir up a scandal and boost readership or listener numbers, the courtwould probably award aggravated damages against you. They may also awardaggravated damages if the defamation was said in a particularly nasty way.
Damages are usually large in the case of media organisations because the courts thinkthat they can pay more for their mistakes than individuals can.
As in any court case, the judge may also award costs against you if you lose (or againstthe plaintiff if they lose), or simply say that each side should pay their own costs of thecase.
________________
For more details on how Australian Defamation Laws are applied, you can find valuableinformation at: http://www.australian-defamation-lawyers.com.au/, including asummary of changes under the Uniform Defamation Law.
Professor Mark Pearson of Bond University has produced The Australian Journalist'sDefamation Checklist, an excellent guide to defamation in Australia together with aninteractive online checklist to use when writing a story.
^^back to the top
Defamation in Australia 3 of 4
Have an account? Log In or Sign Up.
1300 544 755Need Help? Give us a call.
VALUESave up to 90% compared to traditional providers.SPEEDDocuments in minutes, advice in hours.FIXED FEESNo hidden costs.TRUSTEDAdvice and Documents by top quality Australian lawyers.
HomeLegal InformationPersonal Law BlogHow do you sue someone for Defamation?
How do you sue someone for Defamation?Personal Law Blog
February 18, 2014
Taking legal action against someone for hurting your reputation is a big step. You should first get online legal advice and see if there is some other way toremedy the damage they have caused. However, defamation can cause genuine harm to you or your business – see below for Legal Vision’s introduction tounderstanding defamation law.
What is the legal definition of defamation?
Defamation is the publication of false information which hurts a person’s reputation or leads them to be ridiculed, shunned, avoided or despised.
What needs to be proven in a defamation case?
There are some basic legal and factual elements which need to be proven for a defamation case to succeed:
It must be communicated or published to a third partyThe information must be defamatoryThe information must be about the plaintiff
How do you Sue Someone for Defamation? - LegalVision.com.au 1 of 3
There is no lawful excuse for publishing the information
How do you prove something is defamatory?
Defamation can be blatant lies and it can also be false representations – known in defamation as an ‘imputation’.
In a defamation case the onus is on the plaintiff to prove their reputation has been damaged by information being communicated or published. The legaltest used to determine whether a statement is defamatory is whether in the eyes of a “reasonable person” the plaintiff’s reputation has been lowered.
This is the objective test utilised by courts in assessing damage.
Who can sue for defamation?
Only individuals, certain not-for-profit corporations and corporations with 10 employees or less are entitled to sue for defamation.
When must a person who has been defamed sue?
A person who has been defamed has 12 months from the date of publication of the defamatory material to commence proceedings against the publisher ofthe material.
What are the defences to defamation?
There are many defences to defamation. Actually many, many things which are published are defamatory, but the publisher is entitled to rely on a defenceto defamation. These include:
Truth: Also known as ‘justification’ – if the defendant can prove that the defamatory material was substantially true then they can defeat the case.Contextual Truth: This is basically the truth defence, but applied to imputations.Privilege: Some material is protected by the law – such as when you are giving evidence in court or a tribunal or publishing to a limited group whohave a genuine interest in the subject matter of the publication.Public Document: It is not defamatory if you simply republish material which was available in a public document.Opinion: In order to succeed in this defence you will need to show that:
1. It was obvious to the third party that you were merely expressing your opinion;2. It was a matter which is in the public interest; and3. It was based on true or privileged material.
Triviality: If you can show that the defamation was trivial then you may succeed in having the matter struck out.
How much money can I get if I sue for defamation?
It depends on the extent of the damage done and in some cases parties negotiate an out-of-court settlement or apology. Damages are currently capped at$355,500.00.
What should I do if somebody has defamed me or I think I have defamed someone else?
Seek online legal advice from LegalVision.
By Lachlan McKnight. Lachlan is the CEO of LegalVision.com.au. Lachlan is an experienced corporate lawyer with particular expertise inbanking and finance and general corporate matters. LegalVision provides businesses with access to high quality online legal advice, If you’relooking for a specialist small business lawyer or an expert consultant to register a trademark, just get in touch!
Next Steps
Need more information about defamation or any other legal issue? Speak to one of our specialist lawyers today. Just click on the link below for afree consult!
Start HereI want to build a legal document. I need a fixed-fee lawyer. I'm looking for legal information.Not exactly sure what you’re looking for? You can always use our search facility.
Tag Cloud
business contractsemploymentset up a businessstart-upemployment contractwilllendingloansonline businesspersonal financebankruptcydistributionestate law
How do you Sue Someone for Defamation? - LegalVision.com.au 2 of 3