What is defamation?
If someone publishes false information about another person, it may damage their reputation. This is considered defamation and it is illegal in Australia. Comments on someone’s reputation that may be considered menacing, defamatory, damaging or misleading are illegal. This is true whether they are made verbally or written.
If a person can show damage to their reputation, business or relationships as a result of the defamatory comments, they can sue the person who has defamed them and may be awarded damages by a court to compensate for the damage.
When are words considered defamatory?
The intention of the person writing the words (publisher) is irrelevant. What is important is the impact or potential impact of the words. If the effect of the words may lower someone’s reputation in the eyes of other members of the community, or if it causes the community to ridicule, avoid or despise the person, this is considered defamation. Misleading statements about a person may also be defamatory.
Why can’t I say what I want on my own forum/social media account?
Defamation laws in Australia also apply to social media. You cannot argue freedom of speech or that it’s your personal opinion or that it’s your private account.
We have to think of ourselves as publishers on the internet. Anything you post is considered public, so you cannot even claim it is your opinion.
Mickle v Farley
In 2013 a former student made defamatory and malicious comments about his former teacher on his Facebook and Twitter accounts (Mickle v Farley 2013 NSWDC 295). The student argued it was his personal social media account and his comments were private and only made to his personal friends. He also argued he had a right to freedom of speech. The court found he did defame his former teacher and fined the student $105,000.
Madden v Seafolly
Last year a woman who designed swimwear posted photos of Seafolly designs beside her own designs, on her Facebook page. She stated that they looked ‘very similar’ to her designs and she thought they had copied her designs.
Seafolly sued her for misleading and deceptive conduct, using their images without their permission (copyright infringement) and trade libel (defamation), and won. The designer argued she was sharing her personal opinion on her own social media account, but the court decided she was trying to influence customers and was acting with malice. (Madden v Seafolly Pty Ltd 2014 FCAFC 30).
What if other people post things on my site? Who is liable?
The author of defamatory words is not the only person liable. Anyone involved in its publication or distribution may also be liable.
This means you are responsible for everything on your website, whether you posted it or not.
The same is true for your social media accounts. The law expects you to monitor your own website and accounts because you are the one who controls the material content. You are expected to immediately remove any content that may be flagged as misleading, defamatory or malicious.
5 important points you need to know about small business defamation laws:
- You cannot make defamatory comments on social media (or anywhere that may be considered public).
- You cannot let people post things on your website or social media that may be defamatory. You are required to take them down immediately.
- Damage in defamation cases is presumed and does not need to be proven.
- Do not tweet in anger. Unlike the US, Australia has more limited defences available for any ‘freedom of speech’. Do not count on this as a defence!
- You don’t even have to name the person for it to be considered defamation. It is sufficient if the person can show that any reasonable person reading the words could understand them as referring to the person.
So think twice before you post any words about another person. Or just don’t post anything that is not positive – you may be sorry later!
What are your thoughts on small business defamation laws?