Social Media Defamation – Complete Guide

NEWS & ARTICLES

Article Summary

This article provides an in-depth exploration of the increasing issue of social media defamation in Australia. The guide explains how traditional defamation laws, developed before the internet era, struggle to address the unique challenges posed by online communication. Social media platforms allow for the rapid and widespread dissemination of content, often published anonymously, leading to a rise in defamation cases.

The guide discusses various forms of social media defamation, including false text posts, manipulated images, defamatory videos, and fake reviews. It provides real-life examples to illustrate the impact of defamatory actions on individuals and businesses.

The increasing number of defamation cases related to social media has led to significant judicial interpretation and case law development. Courts have had to adapt traditional defamation laws to modern online contexts, addressing issues such as the role of third-party publishers, the implications of unmoderated comments, and the rapid spread of defamatory material.

This guide provides a comprehensive overview of social media defamation, highlighting the legal challenges, real-life cases, and preventive strategies. It underscores the importance of responsible online communication and the legal responsibilities of social media users in preventing and addressing defamatory content.

Our defamation lawyers explain this in more detail.

Table of Contents

Social media defamation and online defamation are on the increase and becoming a real problem in Australia.

Justine Hanks from the Rule of Law Education Centre, said in a paper:

To understand the scope of the issue, “Judge Gibson, Defamation List Judge in the District Court of NSW, reported that, in a 2018 study of 91 defamation judgements, 64 matters (70%) involved partial or entirely online publication, with 63.7% of all cases studied being brought against individuals rather than media corporations.”

Social media defamation in Australia presents unique challenges due to the rapid dissemination and wide reach of online content.

Traditional defamation laws, largely developed before the advent of the internet, struggle to address the nuances of online communication.

Social media allows individuals to publish content easily and anonymously, leading to an increase in defamation cases. These cases often involve viral posts that spread quickly and widely, exacerbating the harm caused.

Courts have applied existing defamation laws to social media, resulting in significant damages awarded in cases involving defamatory posts.

In this article, our defamation lawyers give you a complete guide to social media defamation in Australia.

What is Defamation?

Defamation is the publication of a false factual statement which harms the reputation of a person or small business.  This statement is published with either negligence or malice.

To bring a defamation claim as a company, the company must have fewer than 10 employees, or a natural person must have been defamed.

To bring a claim in defamation, a plaintiff must satisfy four (4) requirements:

  1. There was a publication; and
  2. The publication named you personally (or strong implication); and
  3. The publication was defamatory; and
  4. The defamatory publication has caused (or likely to cause) serious harm.

The publication is defamatory if it:

  1. Injures the reputation of the person/business by exposing it to hatred, contempt, ridicule, or being though less of; and/or
  2. Lowers the person/businesses estimation in the eyes of right-thinking, or reasonable members of the society generally; and/or
  3. Put’s the person/business in the position of being shunned and avoided.

An action for defamation is easily made out in most cases, but success is largely dependent on several available defences open to a defendant.

We have a very detailed article here – Defamation in Queensland.

What is Social Media Defamation?

Social media defamation refers to the act of making false or malicious statements about a person or business on social media platforms, which can damage their reputation.

It involves the publication of defamatory content online, where it can be widely disseminated and potentially cause significant harm to the subject’s personal or professional standing.

The key elements that constitute social media defamation in general are:

  1. False Statement of Fact: The social media statement made must be false. Truthful statements, no matter how damaging, are not considered defamatory.
  2. Publication: The defamatory statement on social media must be communicated to at least one person other than the subject of the statement (Facebook page for example).
  3. Identification: The social media statement must identify the person or business being defamed, either directly or indirectly.
  4. Damage: The statement on social media must cause harm to the person’s reputation, leading to damage such as financial loss, emotional distress, or damage to their reputation.

Social media defamation can take various forms, including:

  1. Text Posts: False statements made in posts or comments.
  2. Images and Videos: Defamatory content can be conveyed through manipulated images or videos.
  3. Reviews and Ratings: False negative reviews on platforms like Google, Yelp, or Facebook.
  4. Shared Content: Sharing defamatory content created by others can also be considered defamation.

Examples of Social Media Defamation

Understanding social media defamation through real-life examples can help illustrate how defamatory actions can manifest on online platforms.

Here are several examples highlighting different forms of social media defamation:

  1. False Accusations
  2. Fake Reviews
  3. Blog Comments
  4. Defamatory Memes
  5. Defamatory Videos
  6. Harassment and Cyberbullying
  7. Manipulated Images
  8. Slanderous Comments

We will explain these in more detail below.

False Accusations

Scenario: A user on Facebook posts a status falsely accusing a person of being involved in illegal activities, such as drug dealing or theft; or have done something criminal, or unethical in their business.

Impact: These accusations, being untrue and harmful, damage the person’s reputation within the community and may lead to social ostracism, job loss, or other personal hardships.

Fake Reviews

Scenario: An individual posts a negative review on Google or Yelp about a local restaurant, claiming that they found foreign objects in their food and experienced food poisoning, despite never having visited the restaurant.

Impact: The false review deters potential customers, causing significant financial loss and reputational damage to the restaurant.

Manipulated Images

Scenario: A person shares a digitally altered image on Instagram, making it appear that a local person was engaging in inappropriate behaviour or was doing something criminal.

Impact: The manipulated image spreads quickly, causing outrage locally and damaging the person’s personal and professional reputation in the local area.

Defamatory Comments

Scenario: In a heated Twitter or Facebook exchange, a user makes defamatory comments about a person, falsely claiming that they have engaged in unethical practices or criminal activities.

Impact: These comments, despite being false, are retweeted, shared, and liked by many, leading to widespread belief in the false information and harming the person’s career and reputation.

Defamatory Videos

Scenario: A YouTuber creates a video falsely accusing a competitor of stealing content and violating copyright laws, presenting fabricated evidence to support their claims.

Impact: The video goes viral, leading to a backlash against the competitor, including loss of subscribers, business opportunities, and partnerships.

Harassment and Cyberbullying

Scenario: A group of students creates a defamatory post on Snapchat about a classmate, falsely claiming that they engaged in inappropriate behaviour at a school event.

Impact: The post is widely shared among students, leading to the victim experiencing bullying, emotional distress, and damage to their reputation.

Defamatory Memes

Scenario: A meme is created and circulated on Reddit that falsely portrays a local business owner as a racist based on a misrepresented quote taken out of context.

Impact: The meme quickly gains traction, resulting in public boycotts, protests, and significant financial loss for the business owner.

Blog Comments

Scenario: On a popular blog, a commenter posts a defamatory statement about a celebrity, alleging without evidence that the celebrity engages in illegal drug use.

Impact: The comment spreads to other platforms, leading to widespread rumours and damage to the celebrity’s public image and career.

Real-Life Social Media Defamation Cases

There is an increase in social media defamation.  Social media defamation involves damaging someone’s reputation through false statements made on platforms like Facebook, Twitter, Instagram, and others.

The rapid dissemination and broad reach of social media posts make defamatory content particularly harmful, as such statements can quickly go viral and reach a vast audience. The unique nature of social media, including the use of emojis and the casual tone of posts, can also complicate defamation cases, as these elements require careful interpretation to understand their defamatory impact.

The increasing prevalence of defamation cases related to social media interactions has highlighted several legal challenges. Courts have had to adapt traditional defamation laws to the modern context of online communication, often leading to significant judicial interpretation and case law development.

Key issues in these cases include determining who is considered the publisher of defamatory content, understanding the implications of unmoderated and anonymous comments, and addressing the rapid and wide spread of defamatory material.

The legal system has recognised the need for updated legislation to effectively manage these challenges and ensure fair outcomes in social media defamation disputes.

Social Media Defamation on Facebook

Defamation on Facebook occurs when individuals post false and harmful statements that damage someone’s reputation. These statements can spread rapidly due to the platform’s wide reach and the ease of sharing content.

Defamatory posts on Facebook can include accusations of criminal behaviour, professional misconduct, or personal attacks. The nature of social media amplifies the impact of these statements, as they can be seen by a large audience almost instantly, leading to severe embarrassment, humiliation, and reputational harm for the targeted individuals.

Courts have addressed various instances of defamation on Facebook, emphasising the serious legal consequences of such actions. They have highlighted the “grapevine effect,” where defamatory content spreads quickly and widely, exacerbating the harm.

In some cases, defamation will not yield significant damages.  However, in several cases, courts have awarded significant damages to plaintiffs, including aggravated damages when the defendants acted with malice or failed to retract their statements. The decisions also stress the responsibility of social media users to communicate responsibly and the potential for legal repercussions when spreading false and defamatory information online.

This underscores the importance of understanding the severe impact defamatory statements can have when made on platforms like Facebook.

Mickle v Farley [2013] NSWDC 295

In Mickle v Farley [2013] NSWDC 295, a former high school student, Andrew Farley, was sued by his former music teacher, Christine Mickle, after posting defamatory statements about her on Twitter and Facebook. The court ultimately ruled in favour of the Plaintiff, awarding Mrs Mickle $105,000.00 in damages.

Discussing the case and defamation on social media in general, the court judge, Judge Elkaim, stated at [21]:

There is one matter that I omitted in relation to the compensatory damages and that is to stress that when defamatory publications are made on social media it is common knowledge that they spread. 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. I have taken that into account in the assessment of damages that I previously made.

Rodgers & Anor v Gooding [2023] QDC 115

In the case of Rodgers & Anor v Gooding [2023] QDC 115, a Queensland woman named Zoe Gooding was ordered to pay $279,000 in damages to a de facto couple for defamatory statements she made about them on Facebook.

The defamatory publications in this case were made by the defendant, Zoe Anne Gooding, on the Bushland Beach Crime Alert Facebook group. The specific defamatory statements included:

Paedophile [address redacted].

In response to queries about the initial post, the defendant commented:

When it’s your kid being touched then you wouldn’t be saying it’s a wild accusation.

In response to a question about how she knew, the defendant replied:

We know cos they tried getting our 6 year old to go with them multiple times. (paragraph [35]).

These publications falsely accused the plaintiffs, Mianka Rodgers and Michael Usher, of being paedophiles and attempting to lure a child, which constituted highly defamatory imputations.

The defamatory posts were made in a Facebook group with nearly 5,000 members, allowing for widespread dissemination and significant impact on the plaintiffs’ lives and reputations. The posts triggered public comments and reactions, further amplifying the harm.

The court’s decision underscores the significant legal consequences of defamatory statements made on social media and the severe impact such actions can have on individuals’ lives and reputations.

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27

The High Court of Australia in Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 addressed the issue of defamation on social media. The Court examined whether media companies that operate public Facebook pages can be held liable as publishers for defamatory comments made by third-party users on their posts.

The Court concluded that these media companies are indeed considered publishers of the third-party comments because they facilitated and encouraged the publication of those comments on their Facebook pages.  Kiefel CJ, Keane and Gleeson JJ said at [55]:

The Court of Appeal was correct to hold that the acts of the appellants in facilitating, encouraging and thereby assisting the posting of comments by the third-party Facebook users rendered them publishers of those comments.

The Court emphasised that publication in defamation law includes any act of participation in the process of making defamatory content available to a third party, regardless of the intent or knowledge of the defamatory nature of the content.

This decision underscores the significant responsibility of social media page operators in managing third-party content and highlights the broad scope of liability under defamation law in Australia.

Gan v Zadravic [2021] NSWDC 533

In the case Gan v Zadravic [2021] NSWDC 533, the plaintiff, Stuart Gan, sued the defendant, Anthony Zadravic, for defamation over a Facebook post.

The post accused Gan of not paying his employees’ superannuation entitlements. The court evaluated the defamatory nature of the publication, the likelihood of harm, and the defences of triviality and justification.

The defamatory content included the following statements made by Zadravic on his Facebook page:

Oh Stuart Gan!! Selling multi million $ homes in Pearl Beach but can’t pay his employees superannuation. Shame on you Stuart!!! 2 yrs and still waiting!!!

This post was online for less than twelve hours but was visible to Zadravic’s Facebook friends, potentially including mutual acquaintances with Gan.

This case is an application for summary dismissal. This application was dismissed as the Court decided that:

  • Defendant’s application for summary dismissal of these proceedings pursuant to UCPR rr 13.4(1)(c) and 14.28 is dismissed.
  • Pursuant to UCPR r 28.2, imputations (i) – (iii) are reasonably capable of being conveyed.
  • Defendant’s challenges to the form of imputations (i) – (iii) dismissed.
  • Defendant pay plaintiff’s costs.

Iskander v Barcos [2023] VCC 2074

In Iskander v Barcos [2023] VCC 2074, the defendant Barcos, who owns a business called BNB Leather, posted on Facebook that accused the plaintiff Iskander of scamming customers by taking deposits and then blocking them. On 19 December 2022, Mr Barcos uploaded a post to the Facebook page. The post read:

Dear Customers and Followers
This is an official Scam Alert from BNB Products Pty Ltd.
Trev is a customer of BNB, we have worked together on multiple cars in the past, as usual everything went well.
Earlier this year he tried to book another project in but we were already booked out for 2022, so he went looking elsewhere, unfortunately this is where things have gone south.
Trev placed a Deposit with an account by the name of Michael Iskander that is advertising on FB market place. Once the deposit was taken he was blocked and the deposit today still has not been returned.
Michael is claiming to have had training and worked full time for BNB, THIS IS NOT TRUE.
Michael worked for BNB as a factory hand, casual 2 days a week for a total of 7 weeks and was dismissed due to misconduct ‘he lied about damaging a car and was caught.

Iskander entered default judgment after Barcos didn’t respond the concerns notice to file a defence. The court found the Facebook post (you can read the post at 12), which had around 20,000 followers, was likely read by hundreds of people and contained defamatory imputations about Iskander scamming customers.

The court accepted the publication caused serious harm to Iskander’s reputation, including lost business opportunities and abusive messages.

The court noted several aggravating factors, including Barcos’s failure to file a defence or attend court, the fabrication of evidence, and the encouragement of others to share the defamatory post. These actions demonstrated a malicious intent to harm Iskander’s business and warranted an award of aggravated damages.

The court awarded Iskander $90,000 in damages, including aggravated damages.

Courtney v Maguire: Maguire v Courtney [2023] VCC 2280

In Courtney v Maguire: Maguire v Courtney [2023] VCC 2280, Thomas Joseph Courtney sued Philip Maguire for defamation concerning three Facebook posts, while Maguire countersued Courtney for defamation over four publications.

The jury returned the verdict that the comments made by Mr Maguire implied Mr Courtney was involved in organised crime, among other serious accusations. The court found that Mr. Maguire had no credible basis for making these claims against Mr. Courtney.  The Court said at [76] and [78]:

There was no basis at all for Mr Maguire’s allegations; he could not have reasonably believed that he could prove they were true. He should not have pleaded a truth defence, should have withdrawn it much sooner, and he should not have repeated his allegations in Court. He also repeated them before the Ringwood Magistrates’ Court in circumstances where they were of even less relevance. I am satisfied that this is aggravating conduct … Accordingly, I am satisfied that Mr Courtney is entitled to an amount of compensation for aggravated damages.

The court ruled in favour of Mr Courtney, stating that Mr Maguire’s actions were motivated by malice. As a result, Maguire’s defamation claims against Courtney were dismissed.

The court awarded damages to Mr Courtney, including aggravated damages, totalling $125,000.

Kelly v Levick [2016] QMC 11

In Kelly v Levick [2016] QMC 11, Kelly sued Levick over allegedly defamatory statements made on Facebook. The post stated:

June turned out to be a thieving, lying, money-crazed bitch who screwed me out of nearly 3 million rand – may she rot in Hell.

The defendant later deleted the post upon finding out that it was generally accessible to the public. The defendant’s attempts at mitigation, including issuing a handwritten apology and a public Facebook apology, were acknowledged but did not significantly reduce the damages awarded.

The court awarded the Plaintiff $10,000.00 in damages, together with interest to the date of this judgment at the rate of 4%.

This case highlights the significant legal implications of defamatory statements made on social media, emphasising the importance of responsible online communication and the potential for widespread reputational harm through platforms like Facebook.

Bolton v Stoltenberg [2018] NSWSC 1518

In Bolton v Stoltenberg [2018] NSWSC 1518, the plaintiff, Conrad Moran Bolton, former Mayor of the Narrabri Shire Council, sued the defendant, Stephen Stoltenberg, for defamation. Stoltenberg operated the public Facebook page “Narri Leaks,” where he posted defamatory content about Bolton. The publications were:

  1. First Post (15 June 2015): Implied that Bolton made a “Captain’s Call” to hire a weak and inexperienced General Manager that he could control, thus breaching the Local Government Act.
  2. Second Post (27 June 2015): Alleged that Bolton deliberately corrupted the selection process for the General Manager of the Council.
  3. Third Post (27 June 2015): Comments on the second post further implying misconduct by Bolton.
  4. Fourth Post (30 June 2015): Alleged deliberate lies, coercion, and intimidation by Bolton to suppress dissenting views on Council matters.
  5. Fifth Post (18 July 2015): Accused Bolton of corrupt conduct by providing false information to the Independent Regulatory and Pricing Tribunal.
  6. Sixth Post (7 January 2016): Implied that Bolton acquired millions of dollars through dishonest means.

The court found that the posts were widely viewed, with Facebook metrics showing significant reach and engagement, confirming the broad dissemination of the defamatory content.

The court held that the posts conveyed serious defamatory imputations, including allegations of corruption, dishonesty, and intimidation, which significantly harmed Bolton’s reputation, stating:

For the foregoing reasons the claims against Mr Stoltenberg should be upheld. The following orders are made:
(1) Mr Stoltenberg to pay Mr Bolton damages of $100,000 comprising $80,000 in general damages and $20,000 in aggravated damages;
(2) Mr Stoltenberg to pay Mr Bolton interest on the award in the amount of $10,000;
(3) Mr Stoltenberg to pay Mr Bolton’s costs as agreed or assessed.

The court’s decision highlights the significant impact of defamatory statements on social media and the legal consequences for individuals who use online platforms to spread false and damaging information.

Social Media Defamation on YouTube

Defamation on YouTube occurs when videos posted on the platform contain false and harmful statements about individuals, leading to significant reputational damage. This can include accusations of criminal conduct, professional misconduct, or fraudulent activities.

Such defamatory content can cause severe embarrassment, humiliation, and harm to the individuals targeted, especially when the videos are widely viewed and shared.

Courts addressing defamation on YouTube emphasise the importance of precise and detailed pleadings, considering the context and reach of the publications. They stress the need for platforms like YouTube to promptly remove defamatory content once notified and acknowledge the balance between protecting individuals’ reputations and upholding free speech.

Legal measures such as damages and injunctions are often used to mitigate the harm caused and to prevent further defamatory publications. The significant impact of defamatory statements on social media underscores the legal responsibilities of content creators and platforms in addressing and managing defamatory material.

Gair and Turland v Greenwood [2020] NSWDC 586

In Gair and Turland v Greenwood [2020] NSWDC 586, the plaintiffs, Thomas Duncan Gair and Garry Maurice Turland, sued the defendant, Adam Haig Greenwood, for defamation related to a YouTube video and other online posts. The defamatory publications included:

  1. A YouTube video titled “The Strife and Crimes of Duncan Gair” which falsely accused Gair and Turland of corruption and criminal conduct.
  2. The video contained specific imputations that Gair, as the Mayor, misused his office, received bribes, and was a racketeer. Similarly, Turland, a councillor, was accused of being a crook, misusing his position, bribing the Mayor, and engaging in conflicts of interest.

The defamatory content was published on:

  1. YouTube: The primary platform for the video.
  2. Facebook: Additional defamatory statements were made and shared on various Facebook pages.
  3. Other Websites: Including southernhighlandsnsw.org, and other online platforms.

The video had been viewed over 600 times within a day of being uploaded, causing severe embarrassment, humiliation, and reputational damage to the plaintiffs. The targeted nature of the publication was intended to harm their reputations within their community.

The court awarded aggravated damages due to the malicious intent behind the video and the continued defamatory campaign against the plaintiffs. Greenwood refused to apologise and persisted in his defamatory statements even during the court proceedings.

This case highlights the significant legal repercussions of defamatory statements made on YouTube and other social media platforms, emphasising the court’s role in addressing and mitigating reputational harm through damages and injunctions.

Mitchell v Jobst [2023] QDC 219

In Mitchell v Jobst [2023] QDC 219, the plaintiff, William James Mitchell, a competitive video gamer, sued the defendant, Karl Jobst, for defamation over a YouTube video titled “The Biggest Conmen in Video Game History Strike Again.” The plaintiff alleged that the video contained defamatory statements that harmed his reputation.  The defamatory publications included:

The YouTube video titled “The Biggest Conmen in Video Game History Strike Again” which alleged that the plaintiff was involved in deceptive and fraudulent activities related to video game records.

The court found that the pleadings needed to be more precise in defining the defamatory imputations and how they were conveyed through the video.

The court’s decision underscores the importance of precise and detailed pleadings in defamation cases involving social media platforms like YouTube, ensuring that the allegations are clearly defined and supported by evidence of publication and access.

El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816

In El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816, the plaintiff, Mohamed El-Mouelhy, sued the defendants for defamation related to videos and a presentation that were published online, including on YouTube. The defamatory publications included:

  1. First Publication: A video uploaded on YouTube titled “Understanding Halal Certification Schemes
  2. Second Publication: A presentation given by one of the defendants at a symposium styled “The First International Symposium on Liberty and Islam in Australia.”
  3. Third Publication: A videorecording of the symposium presentation also uploaded on YouTube.

The court’s decision highlights the complexities involved in defamation cases related to social media, especially regarding contextual truth and the extent of publication on platforms like YouTube.

Barilaro v Google LLC [2022] FCA 650

In Barilaro v Google LLC [2022] FCA 650, the plaintiff, John Barilaro, sued Google LLC for defamation related to several YouTube videos published by Jordan Shanks, known as “friendlyjordies.” The defamatory publications included two main YouTube videos:

  1. The “bruz” Video: Uploaded on 14 September 2020, containing imputations that Mr. Barilaro was a corrupt conman, committed perjury, should be jailed for perjury, corruptly gave $3.3 million to a beef company, and corruptly voted against a Royal Commission into water theft.
  2. The “Secret Dictatorship” Video: Uploaded on 21 October 2020, alleging that Mr. Barilaro acted corruptly by blackmailing councillors and pocketing millions of dollars stolen from the Narrandera Shire Council.

The court made several key findings regarding defamation on YouTube:

The court found the videos to be part of a relentless, racist, vilificatory, abusive, and defamatory campaign against Mr. Barilaro, leading to significant reputational damage and emotional distress.

Google failed to remove the defamatory videos promptly despite knowing they contained offensive and defamatory attacks. The court criticised Google for its inaction and for maintaining hopeless defences until the commencement of the trial.

The court’s decision highlights the responsibilities of social media platforms like YouTube in addressing defamatory content and the legal consequences of failing to act on known defamatory material.

Agustin-Bunch v Smith [2021] VSC 158

In Agustin-Bunch v Smith [2021] VSC 158, the plaintiffs, Farrah Arsenia Agustin-Bunch and DRF LLC, sued the defendants, Adam Charles Smith and Doc Adam Pty Ltd, for defamation. The case revolved around a series of videos and posts published on YouTube and Facebook, in which Dr. Smith criticised Dr. Farrah’s natural medicine practices.  The defamatory publications included:

  1. First Video: Titled “The worst doctor’s advice in the Philippines,” posted on YouTube and Facebook, which accused Dr. Farrah of promoting dangerous medical advice and fraudulent practices.
  2. Second Video: Titled “Goodbye Facebook,” discussing the service of legal documents on Dr. Smith.
  3. Third Video: Titled “Ang TOTOO tungkol kay Doctor Cabbage,” alleging various defamatory imputations against Dr. Farrah.
  4. Fourth Video: Titled “Goodbye Dr Farrah,” claiming Dr. Farrah’s practices and products were illegal and harmful.
  5. Fifth Video: Titled “Real Doctor debunks Dr Farrah medical advice,” which questioned Dr. Farrah’s medical credentials and advice.
  6. Sixth Video: Titled “My Response to Miss Glenda,” comparing Dr. Farrah’s products to harmful substances.
  7. Seventh Video: Titled “My response to Healing Galing,” making further defamatory claims about Dr. Farrah’s practices (Paragraphs [24]-[55]).

The court made several key findings:

The court considered the public interest in free speech and the importance of public health debate. However, it emphasised that defamatory statements causing significant harm could not be justified under the guise of public interest.

This case underscores the impact of defamatory statements on social media and the legal measures available to address such defamation, emphasising the balance between free speech and protecting individuals’ reputations.

Social Media Defamation on Instagram

Defamation on Instagram can occur when individuals or entities publish false and harmful statements about someone, which can rapidly spread and cause significant reputational damage due to the platform’s wide reach and ease of sharing.

Posts may include serious accusations such as criminal behaviour, unethical practices, or personal attacks. The courts have recognised the extreme nature of such imputations and the serious harm they can cause, particularly when the defamatory content is highly sensational and widely disseminated.

In several instances, plaintiffs have been awarded substantial damages for the reputational harm and personal distress caused by defamatory Instagram posts.

The courts emphasise the importance of prompt action by social media platforms to remove defamatory content once reported, highlighting the responsibility of platforms like Instagram to enforce their community standards and terms of service to prevent the spread of defamatory material.

The courts also note the potential liability of platforms for failing to act against known defamatory content. Additionally, the courts consider the balance between protecting free speech and mitigating harm, often exercising caution in granting injunctions unless there is clear evidence of ongoing or repeated defamation.

This underscores the delicate balance in legal proceedings involving defamation on social media, particularly on platforms with broad user engagement like Instagram.

Martin v Najem [2022] NSWDC 479

In Martin v Najem [2022] NSWDC 479, Isaac Martin, a prominent food blogger and social media influencer, took action against the defendant, Fouad Najem, also a food blogger and influencer, after he published videos on Instagram calling the plaintiff a “paedophile” and a “racist“.

The court found that the serious harm requirement was satisfied, based on factors such as the extreme nature of the imputations, the manner of publication, the extent of publication, and the ongoing impact on the plaintiff’s health and security.

The plaintiff was awarded $300,000 in damages, including aggravated damages, plus interest of $6,656.

BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111

In the case of BeautyFULL CMC Pty Ltd & Ors v Hayes [2021] QDC 111, the plaintiffs sued the defendant for defamation over several posts made on Instagram.

The defamatory publications made false allegations about the plaintiffs’ professional and personal conduct, causing significant reputational damage.  The defamatory publications included:

  1. A post on Instagram on 30 March 2020, where the defendant accused the first plaintiff of fabricating a photo of the fourth plaintiff working on the frontline during COVID-19, calling it “disgusting and disrespectful“.
  2. On 10 May 2020, the defendant posted a story on Instagram, implying that her ex-employer was involved in a physical assault that caused her hospitalisation.
  3. On 11 May 2020, the defendant made phone and Facebook message communications alleging that the second and third plaintiffs had hacked her social media accounts and were involved in setting her up to be assaulted.

The defamatory publications were primarily made on Instagram, and then on Facebook.

The Court awarded damages and also made the following injunction:

The defendant, whether by herself, her servants or agents is prohibited from causing to be published whether orally or in writing or by email or electronic means, or by way of publication on any social media platform such as but not limited to Facebook, Instagram, Twitter, TikTok, Reddit, any publication which has the effect defaming the first, second, third or fourth plaintiffs.

Hoser v Harrison [2024] FedCFamC2G 436

In Hoser v Harrison [2024] FedCFamC2G 436, the plaintiff, Raymond Hoser, sued the defendant, Anthony Harrison, for defamation related to material posted on Instagram. The defamatory conduct included posts made on Instagram that conveyed false and harmful statements about Mr. Hoser, damaging his reputation and business.

The Court acknowledged the challenges in managing and monitoring user-generated content on platforms like Instagram, given the volume of content and the automated systems in place.

The Court emphasised the responsibility of social media platforms, like Instagram, in enforcing their terms of service and community standards to prevent defamatory content.

The Court also highlighted the significance of prompt removal of defamatory posts once reported and the liability of the platform in cases of failure to act.

The Court’s ruling underscores the importance of stringent monitoring and swift action by social media platforms to mitigate the spread of defamatory content and uphold the legal standards of defamation law.

Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004

In Molan v Dailymail.com Australia Pty Ltd [2022] FCA 1004, the court addressed defamatory content involving a prominent sports and media personality, Erin Molan. While the case primarily involved articles and tweets published by Dailymail.com, there were also mentions of related defamatory content on Instagram.

The court examined the extent to which these publications defamed the plaintiff by conveying false and damaging imputations about her.  The defamatory publications included:

  1. An online article published by Dailymail.com on 5 June 2020, which was the primary focus of the defamation claim.
  2. Tweets published on 5 June 2020 and 6 June 2020, which reiterated the defamatory content from the article.
  3. Instagram post by Erin Molan herself, referenced indirectly in the context of public reactions to her alleged comments (Paragraph [56]).

The court emphasised the wide reach and impact of social media platforms like Instagram, noting that defamatory statements made on such platforms can spread rapidly and cause significant harm.

The case underscored the importance of accurate and responsible reporting by media outlets and the potential liability they face for defamatory content published on social media. The court highlighted that even indirect references to defamatory content on platforms like Instagram contribute to the overall damage caused by such publications.

Russell v S3@Raw Pty Ltd [2023] FCA 305

In Russell v S3@Raw Pty Ltd [2023] FCA 305, the plaintiff, Hayley Elizabeth Russell, sought an interlocutory injunction against the respondents for defamatory posts published on Instagram. The defamatory conduct involved posts accusing Russell of misconduct related to her business dealings, which led to significant reputational damage and personal distress.  The defamatory publications included:

  1. Main Post: Published on the Instagram account “s3_studio” in November 2022, which included statements accusing Russell of working behind the respondents’ back, providing false reasons to take clients, and signing a lease to frustrate a business sale.
  2. January Posts: Published on 25, 26, and 27 January 2023 on the Instagram account “joshua.s3,” making further defamatory statements about Russell’s business practices and legal actions.

The Court highlighted the significant impact of defamatory statements on social media platforms like Instagram, noting their potential for rapid and widespread dissemination. The Court recognised the “grapevine effect,” where defamatory content can quickly spread and cause extensive harm.

Despite the serious nature of the allegations, the Court emphasised the importance of free speech and the need to exercise caution when granting interlocutory injunctions.

The Court ultimately denied the injunction, finding that the balance of convenience did not favour the plaintiff, as the posts had already caused significant damage and there was no clear indication of further harm if the injunction was not granted.

Social Media Defamation Twitter (or X) & Emojis

Defamation on Twitter involves the publication of false and harmful statements that can quickly spread and cause significant reputational damage. Tweets can include explicit accusations, derogatory comments, and misleading implications about individuals’ professional conduct, personal behaviour, or character.

The rapid dissemination of such tweets is facilitated by Twitter’s platform features, such as retweets, likes, and replies, which amplify the reach and impact of defamatory content.

Additionally, the use of emojis and hyperlinks within tweets can convey defamatory meanings subtly yet effectively, making it essential to consider the full context and potential interpretations by the audience.

Courts have addressed the unique challenges of defamation on Twitter, emphasising the importance of context and the perspective of the ordinary reasonable reader. They recognise that tweets are often consumed in a casual and conversational medium, necessitating a holistic and impressionistic approach to interpretation.

Legal rulings have highlighted the need for plaintiffs to provide clear evidence that defamatory material was accessed and comprehended within the statutory limitation period.

The courts also stress the responsibilities of social media users to verify claims before publication and the potential for aggravated damages if defamatory content is published with malicious intent or persists despite attempts to resolve the issue.

Burrows v Houda [2020] NSWDC 485

In the case of Burrows v Houda [2020] NSWDC 485, the plaintiff, Zali Burrows, sued the defendant, Adam Houda, for defamation based on two Twitter posts:

  1. First Post (28 July 2019): The defendant tweeted that the plaintiff was facing a potential legal battle after a judge made scathing remarks about her competency as a lawyer.
  2. Second Post (27 May 2020): The defendant used the “zipper-mouth face” emoji in response to a query about the plaintiff, implying that she was involved in serious professional misconduct and possibly criminal activities.

The court addressed the capacity of certain imputations to convey defamatory meanings, particularly in the context of social media communication, which includes the use of emojis and the rapid dissemination of potentially harmful information.  The Court said:

One of the main changes to online writing style has been the introduction of two new-age hieroglyphic-style languages: emoticons and emoji. An “emoticon” is a portmanteau term (from “emotional icon”) for pictures made from punctuation marks, letters and numbers to create an image displaying a sentiment and predates the internet as signs (such as 🙂 or ʕ·ᴥ·ʔ) can be created with a keyboard … An “emoji” is a more recent invention, consisting of pictographs of faces, objects and symbols; as the name would suggest, the origin of these pictographs is from use in Japan (the jury is still out on whether “emoji” is a collective noun or whether in its plural form it should be anglicised with an “s”; I have taken the former approach).

The court found that the words and emojis used in the tweets were capable of conveying defamatory meanings, including allegations of professional misconduct and criminal behaviour.

This case highlighted the court’s approach to interpreting emojis within the context of defamation. The court acknowledged that emojis could convey significant defamatory meanings, similar to words, and that their interpretation must consider the context of the entire post and the reasonable reader’s perspective.

The court’s decision underscores the significant impact of defamatory statements made on social media, including those conveyed through emojis, and the need for careful consideration of the context and potential harm when assessing such claims.

Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112

In the case Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112, the plaintiffs, Asbog Veterinary Services Pty Ltd (trading as Albion Veterinary Surgery and Eatons Hill Veterinary Surgery) and Dr. Allen O’Grady, sued the defendant, Carrie Barlow, for defamation.

The court addressed defamatory comments made by the defendant on various social media platforms, which harmed the reputation of the plaintiffs, including:

  1. First Publication (15 October 2014): A tweet alleging a 400% mark-up on pet drugs after a dog attack, tagging several other veterinary services.
  2. Second Publication (15 October 2014): A review on True Local alleging gross overcharging and claiming the vet took advantage of a distressed pet owner.
  3. Third Publication (24 October 2014): An amended review on True Local with similar allegations, adding that the mark-up was about 350%.
  4. Fourth Publication (15 October 2014): A Facebook post on the defendant’s personal page, repeating the gross overcharging claim and displaying a letter from the vet.
  5. Fifth Publication (24 October 2014): An amended Facebook post with similar allegations.
  6. Sixth Publication (24 October 2014): Another Facebook review alleging overcharging and inflammatory, unprofessional conduct.
  7. Seventh Publication (15 October 2014): A Facebook post on the Albion Vet’s page warning others to avoid the vet.

The court noted that the context of the social media posts and the audience’s perception were crucial in assessing the defamatory nature of the statements. The posts reached a significant audience, and the allegations were serious enough to harm the plaintiffs’ reputations.

The court awarded aggravated damages due to the malicious intent behind the posts and the continued publication of defamatory content despite the plaintiffs’ attempts to resolve the issue. The court found the defendant’s conduct aggravated the harm caused to the plaintiffs.

The court granted a permanent injunction restraining the defendant from publishing further defamatory statements about the plaintiffs.

The case highlights the serious impact of defamatory statements made on social media and the importance of verifying claims before publishing potentially harmful content.

Hockings v Lynch & Adams [2022] QDC 127

In the case Hockings v Lynch & Adams [2022] QDC 127, the plaintiff, Penny Hockings, sued the defendants, Michelle Lynch and Alison Adams, for defamation over multiple posts made on Facebook and on Twitter.  The defamatory publications included:

  1. First Publication (28 October 2018): Comments on the “Relocate Kingscliffe Hospital from State Significant Farmland Incorporated Association” Facebook page, implying dishonesty and corruption involving Hockings and her association with the Tweed Valley Hospital site and the Goldsky investment scheme.
  2. Subsequent Publications: Various posts and comments on Facebook between October 2018 and July 2019, including direct messages and posts on public and private pages, suggesting Hockings was involved in fraudulent activities and was dishonest.

The court found that the posts conveyed serious defamatory meanings, including allegations of corruption, dishonesty, and involvement in fraudulent activities, which were not substantiated by evidence.

The court recognised the casual and conversational nature of social media but emphasised that defamatory statements made in forums could still cause significant reputational damage.

The court’s decision highlights the significant impact of defamatory statements on social media and the importance of context, reach, and the nature of the platform in assessing defamation cases.

Bazzi v Dutton [2022] FCAFC 84

In Bazzi v Dutton [2022] FCAFC 84, Shane Bazzi appealed against a defamation judgment where the primary judge found that his tweet conveyed the imputation that Peter Dutton excuses rape. The defamatory publication in question was a tweet by Shane Bazzi posted on 25 February 2021, stating:

Peter Dutton is a rape apologist

… with a link to a Guardian article about Dutton’s comments on asylum seekers.

The court emphasised that tweets should be read as a whole and in the context of how social media users understand them. The primary judge’s approach of analysing the tweet in parts and focusing heavily on dictionary definitions was found to be inappropriate.

The court noted that social media is a casual medium, and an impressionistic approach is more fitting to determine what the ordinary reasonable reader would understand from the tweet. The context includes both the tweet and the linked material, which together influence the reader’s interpretation.  Finally finding:

It is not sufficient that the tweet was offensive and derogatory. Mr Dutton had the onus to establish, on the balance of probabilities, that the reader reasonably would have understood that the tweet conveyed the imputation that he asserted it conveyed. In our opinion, he failed to discharge that onus so that the appeal must be allowed, the judgment entered for Mr Dutton in the sum of $35,825 must be set aside and the proceeding dismissed.

The court’s decision underscores the importance of context in defamation cases involving social media and highlights the need for a holistic and realistic interpretation of online communications.

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652

In Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652, the plaintiff, Joseph Benedict Hockey, then Federal Treasurer, sued Fairfax Media over multiple publications that included both traditional print and digital formats. The defamation case revolved around articles, posters, and tweets suggesting that Hockey engaged in corrupt practices by offering privileged access in return for political donations.  The defamatory publications included:

  1. Articles: Published in the Sydney Morning Herald, The Age, and The Canberra Times, which implied that Hockey was involved in corrupt practices through a fundraising body called the North Sydney Forum.
  2. Headlines and Posters: Prominent headlines like “Treasurer for Sale” and posters used to promote the articles.
  3. Tweets: Tweets from The Age’s Twitter account stating:

Treasurer for Sale and Treasurer Hockey for Sale.

The Court finally deciding:

In summary, I uphold Mr Hockey’s claims only with respect to the publication of the SMH poster and the first two matters published on Twitter by The Age. I award damages of $120,000 and $80,000 respectively in relation to those claims.

The court’s decision highlights the significant impact of defamatory statements on social media and the importance of responsible journalism, especially in the context of digital platforms where sensational headlines can quickly spread and cause harm.

Hodgetts v Nine Network Australia Pty Ltd & Ors [2020] QSC 330

In Hodgetts v Nine Network Australia Pty Ltd & Ors [2020] QSC 330, the plaintiff, Kyle Hodgetts, sought damages for defamation related to an episode of “A Current Affair” and its subsequent online publications.

The case primarily addressed whether the defamatory material was accessed and downloaded by third parties within the statutory limitation period, impacting the viability of Hodgetts’ claims. The defamatory publications included:

  1. First Matter Complained Of: The episode titled “Kyle the Con” broadcast on “A Current Affair” and subsequently uploaded to the Nine website.
  2. Second Matter Complained Of: Posts on the “A Current Affair” Twitter page and an alleged Facebook post promoting the broadcast.

The court reiterated that for defamation to be actionable, the defamatory material must be accessed and comprehended by a third party within the limitation period. Merely making content available online does not constitute publication unless it is actually viewed.

The court emphasised the importance of proving that the material was accessed and downloaded within one year prior to the filing of the claim or any amendments, as required by the Limitation of Actions Act 1974 (Qld).

The court’s decision highlights the critical role of evidence in proving publication within the statutory limitation period and underscores the challenges plaintiffs face in defamation cases involving online content.

Social Media Defamation on Blog Posts

Defamation on blog posts occurs when false and damaging statements are published online, harming an individual’s reputation. These defamatory statements can include false accusations, misleading claims about someone’s personal or professional life, and any other content that can cause the subject to be ridiculed, shunned, or viewed with contempt.

Blog posts, being easily accessible and widely read, can significantly amplify the impact of defamatory content, leading to severe damage to the individual’s reputation. The harm is exacerbated when the defamatory content is published with malicious intent or reckless disregard for the truth, and when it is disseminated across multiple online platforms, reaching a large audience.

Courts have addressed the complexities of defamation in blog posts by focusing on where the content is accessed and understood. The place of publication is crucial in determining jurisdiction and the applicable law, as the reputational damage occurs where the material is read and comprehended.

Successful defamation claims against blog posts often result in substantial damages, including compensation for economic losses and aggravated damages if malice is proven. The legal outcomes emphasise the responsibility of bloggers to ensure the accuracy of their content and the potential legal repercussions of publishing defamatory material online.

Wilson v Bauer Media Pty Ltd [2017] VSC 521

The case Wilson v Bauer Media Pty Ltd [2017] VSC 521 involved the plaintiff, Rebel Wilson, suing Bauer Media for defamation. The defamation claims were based on a series of articles published in Bauer Media’s print magazines and online platforms, alleging that Wilson was a serial liar who fabricated aspects of her personal and professional life to advance her career:

  1. Wilson lied about her age, claiming to be younger than she was.
  2. Wilson lied about her real name, background, upbringing, and personal experiences.
  3. The articles suggested Wilson was untrustworthy, and her success was based on falsehoods.

The defamatory content was published on multiple online platforms, including:

  1. Day print magazine
  2. Woman’s Day website
  3. Woman’s Weekly website
  4. New Weekly website
  5. OK Magazine website.

The jury found that each of the publications conveyed defamatory meanings, as alleged by Wilson, and rejected the defences of substantial truth, triviality, and qualified privilege.

The court emphasised the serious harm caused to Wilson’s reputation and awarded substantial damages. General damages were assessed at AU$650,000, and special damages for economic loss were valued at $3,917,472, recognising the significant impact on Wilson’s career opportunities.

The court awarded aggravated damages due to the malicious intent behind the publications and Bauer Media’s conduct in maintaining the defamatory stance even after the initial publication. The court found that Bauer Media acted to profit commercially by publishing sensational articles without regard for the truth.

Dow Jones & Company Inc v Gutnick [2002] HCA 56

In Dow Jones & Company Inc v Gutnick [2002] HCA 56, the High Court of Australia addressed the issue of defamation on the internet. The case revolved around an article published by Dow Jones on its subscription website WSJ.com, which contained defamatory statements about Joseph Gutnick. The defamatory publications were:

An article titled “Unholy Gains” published in the October 2000 edition of Barron’s magazine and reproduced on WSJ.com.

The article implied that Gutnick was involved in money laundering and other unethical business practices. The court determined that the defamatory material was published in Victoria, Australia, where it was downloaded and read. This established that the place of publication for defamation cases involving the internet is where the material is comprehended by a third party, not where the server hosting the content is located.

The court emphasised that defamation is concerned with damage to reputation, which occurs where the defamatory material is read and understood. Therefore, Gutnick’s reputation in Victoria was harmed by the publication, making Victoria the appropriate jurisdiction for the case.

The decision in this case underscores the importance of where defamatory content is accessed and understood in determining jurisdiction and applicable law in defamation cases involving the internet.

How Can I Avoid Being Sued for Defamation?

Avoiding a defamation claim being made against you requires careful consideration and responsible communication. Here are some guidelines to help you steer clear of defamation claims:

  1. Avoid Derogatory Comments on Race or Religion: Never make derogatory remarks about someone’s race, religion, or any other protected characteristic. Such comments are not only defamatory but can also be considered hate speech, leading to severe legal consequences.
  2. Avoid Identifying Individuals Unintentionally: Be cautious about identifying individuals in your statements, even unintentionally. If your comments could potentially harm someone’s reputation, it’s better to refrain from naming them or providing identifiable details.
  3. Consult a Lawyer When in Doubt: If you’re unsure about whether a statement might be defamatory, seek legal advice before making, writing, tweeting, or posting it. A lawyer can help you understand the legal implications of your statements and guide you in communicating responsibly.
  4. Focus on the Issue, Not the Person: When discussing a topic, focus on the issue at hand rather than making personal attacks or generalisations about individuals. Personal comments and sweeping statements can be perceived as defamatory and harm someone’s reputation.
  5. Follow the Golden Rule: Adopt the principle, “If you can’t say something nice, don’t say anything at all.” This approach encourages positive interactions and reduces the risk of making potentially defamatory statements.
  6. Use Neutral and Non-Emotive Language: Emotive language can escalate situations and lead to misinterpretations. Stick to neutral, factual language to convey your message without unnecessary emotional overtones.
  7. Verify Statements for Accuracy: Always ensure that any statements you make are factually accurate. Avoid repeating information from others without verifying its truthfulness. Fact-checking is crucial, as repeating false information, even if it’s from a seemingly reliable source, can still result in defamation.

By adhering to these guidelines, you can communicate more responsibly and reduce the risk of defaming someone, thus protecting yourself from potential legal action.

How Do I Make a Social Media Defamation Claim?

To make a defamation social media claim, you must follow specific legal steps to establish that defamatory content has harmed your reputation. Here are the key steps involved:

Establishing Defamation by:

  1. Showing that the defamatory material was published on social media.
  2. Showing that an ordinary person would consider the published material to be defamatory.
  3. Showing that the publication of the material caused serious harm to your reputation.
  4. Showing that you can be identified in the published material.
  5. Issuing a “concerns notice” to the publisher. This notice must specify where the defamatory information can be accessed, the defamatory imputations, and the harm caused to your reputation. The publisher has 28 days to respond, and they may request further particulars if the notice lacks adequate details. You must provide these details within 14 days, and the publisher then has the remaining 14 days to respond.

The publisher can make an offer to make amends, which may include publishing a correction, apologising, removing the defamatory material, and compensating for any loss incurred. This offer must be made within 28 days of receiving the concerns notice and before lodging a defence to the defamation action.

If the issue is not resolved through the concerns notice and offer to make amends process, you can file a defamation claim in court. The limitation period to lodge a defamation claim is one year from the date of the first publication of the defamatory material.

By following these steps and seeking legal advice, you can effectively pursue a social media defamation claim and seek redress for the harm caused to your reputation.

Injurious Falsehood or Social Media Defamation?

Injurious falsehood, also known as malicious falsehood, is a legal tort that is similar to defamation but focuses specifically on protecting a person’s business, goods, or services from false and malicious statements that cause economic loss. Unlike defamation, which primarily protects an individual’s personal reputation, injurious falsehood is concerned with statements that harm a person’s commercial interests.

To successfully claim injurious falsehood, a plaintiff must prove four key elements:

  1. False Statement: The defendant made a false statement about the plaintiff’s goods, services, or business.
  2. Publication: The false statement was published to a third party.
  3. Malice: The false statement was made with malice, meaning the defendant intended to cause harm or acted with reckless indifference to the truth.
  4. Actual Damage: The plaintiff suffered actual economic loss as a direct result of the false statement.

Injurious falsehood requires proof of malice and actual damage, making it distinct from defamation. Malice involves the intention to harm another person without just cause, or knowledge of the falsity of the statement. Economic loss must be proven to have resulted directly from the false publication.

This tort provides legal recourse for traders and businesses to protect against harmful false statements that affect their commercial interests, and it allows for remedies such as damages and injunctive relief to prevent further harm.

What are the Defences to Social Media Defamation Online?

To defend against a defamation claim on social media, there are several statutory and common law defences that can be used. Here are the primary defences:

  1. Justification (Truth): If the statements made are substantially true, this defence can be used. The defendant must prove that the defamatory imputations are true in substance or not materially different from the truth.
  2. Contextual Truth: This defence applies when the publication contains multiple defamatory statements, some of which are true. If the truthful statements overshadow the false ones, causing no further harm to the plaintiff’s reputation, this defence can be used.
  3. Absolute Privilege: Statements made during parliamentary proceedings, court proceedings, or tribunal hearings are protected by absolute privilege, meaning they cannot be the basis of a defamation claim.
  4. Publication of Public Documents: If the defamatory statements are contained in public documents or fair copies of such documents, this defence can apply. Public documents include court judgments, parliamentary reports, and government publications.
  5. Fair Report of Proceedings of Public Concern: This defence applies if the defamatory statements were part of a fair and accurate report of proceedings that are of public concern, such as court cases, parliamentary debates, or public meetings.
  6. Qualified Privilege: If the defamatory statements were made in circumstances where the defendant had a duty to communicate the information and the recipient had an interest in receiving it, and if the defendant acted reasonably, this defence can apply.
  7. Honest Opinion: If the defamatory statements were opinions rather than facts, related to a matter of public interest, and based on proper material, this defence can be used. The opinions must be clearly distinguishable from factual assertions.
  8. Innocent Dissemination: This defence is available to subordinate distributors, such as newsagents or libraries, who published the defamatory material without knowing it was defamatory and without negligence.

The key to successfully defending a defamation claim is to carefully assess the facts and circumstances surrounding the publication and choose the most appropriate defence strategy.

We have a very detailed article here – Defending a Defamation Claim in Queensland

Difference Between Online Slander and Online Libel

Section 7 of the Defamation Act 2005 (Qld) states:

(1) The distinction at general law between slander and libel remains abolished.
(2) Accordingly, the publication of defamatory matter of any kind is actionable without proof of special damage.

This means that they both fall under the definition of defamation.  There is now no distinction between Facebook slander and Facebook libel, as it is all now defamation on Facebook.

This applies to all online slander and online libel.

Social Media Defamation FAQ with Answers

Defamation, particularly on social media, is a growing concern in Australia, affecting both individuals and businesses.

This FAQ section provides concise answers to common questions about defamation, including legal definitions, actions to take if defamed, and steps to avoid being sued for defamation.

What is Defamation?

Defamation is the publication of a false factual statement that harms the reputation of a person or small business. This statement is published with either negligence or malice. To bring a defamation claim, the plaintiff must show that the publication named them personally, was defamatory, and caused or is likely to cause serious harm. The publication is defamatory if it injures the reputation by exposing the person or business to hatred, contempt, ridicule, or being thought less of by society.

What is social media defamation?

Social media defamation refers to making false or malicious statements about a person or business on social media platforms, which can damage their reputation. This includes false statements communicated to at least one person other than the subject of the statement. The statement must identify the person or business being defamed and cause harm to their reputation, such as financial loss or emotional distress. Social media defamation can take various forms, including text posts, images, videos, and reviews.

When can small businesses claim social media defamation?

Small businesses can claim defamation if they have fewer than ten employees or if a natural person associated with the business has been defamed. The defamatory statement must meet the same criteria as individual claims, involving false factual statements that harm the business’s reputation. The business must show that the publication identified it, was defamatory, and caused or is likely to cause serious harm. The harm can include financial loss and damage to the business’s reputation.

Can you sue for defamation on social media?

Yes, you can sue for defamation on social media. The defamatory statement must be published, false, identify the person or business, and cause serious harm to their reputation. Social media platforms amplify the impact of defamatory statements due to their wide reach and ease of sharing content. Courts have awarded significant damages in cases involving defamatory social media posts, emphasising the serious legal consequences of such actions.

I think I have been defamed. What should I do?

If you believe you have been defamed, it is important to act quickly. Document the defamatory statement by taking screenshots and noting the date and time it was published. Avoid responding or escalating the situation on social media. Consult a lawyer to discuss your options and consider issuing a concerns notice to the publisher, specifying the defamatory imputations and the harm caused to your reputation. The publisher has 28 days to respond and may offer to make amends, including correcting the statement, apologising, or compensating for the loss incurred.

How do I prove defamation on social media?

To prove defamation on social media, you must show that the defamatory material was published, the material is considered defamatory by an ordinary person, it caused serious harm to your reputation, and you can be identified in the published material. This often involves gathering evidence such as screenshots and witness statements. Additionally, you may need to issue a concerns notice to the publisher and give them an opportunity to respond before taking legal action.

Who is responsible for defamatory posts?

Responsibility for defamatory posts can lie with both the original poster and the platform that facilitates the publication of the content. Courts have held that social media companies can be considered publishers of defamatory comments if they facilitate, encourage, or assist in the publication of those comments. This includes acts like allowing the comments to be posted on their platforms without appropriate moderation.

What should I do if I am accused of defamation on social media?

If you are accused of defamation on social media, take the accusation seriously and do not ignore it. Consider removing the defamatory content and issuing a public or private apology to the affected party. Consult a lawyer to understand the legal implications and your options. Depending on the severity of the defamation claim, you may also need to issue a correction or make an offer to settle the matter to avoid legal action.

What are examples of social media defamation?

Examples of social media defamation include false accusations, fake reviews, defamatory memes, and manipulated images. For instance, falsely accusing someone of criminal behaviour in a Facebook post, writing a fake negative review about a business on Google, or sharing a digitally altered image that misrepresents a person’s actions can all be considered defamatory. These actions can significantly harm the targeted individual’s or business’s reputation, leading to social ostracism, financial loss, or personal distress.

What happens if you publish something that is defamatory on social media?

Publishing defamatory content on social media can lead to severe legal consequences, including lawsuits and significant damages. The person or business defamed can sue for compensation for the harm caused to their reputation. Courts have awarded substantial damages in such cases, including general, special, and aggravated damages. Additionally, the person who posted the defamatory content may be required to issue a public apology and remove the defamatory material.

Can Facebook posts amount to defamation?

Yes, Facebook posts can amount to defamation if they contain false statements that harm someone’s reputation. The wide reach and ease of sharing on Facebook amplify the potential damage caused by defamatory posts. Courts have dealt with numerous cases involving defamatory Facebook posts, emphasising the serious legal repercussions for individuals who publish false and harmful content on this platform. The impact can include significant reputational damage and legal liability for the poster.

Can Facebook comments amount to social media defamation?

Yes, Facebook comments can also amount to defamation if they meet the criteria of containing false statements that damage someone’s reputation. The casual nature of comments does not exempt them from defamation laws. Comments can spread quickly through likes, shares, and replies, leading to widespread harm. Courts have recognised the significant impact of defamatory comments on social media and have held individuals accountable for such statements.

What If I Ignore a Defamation Claim?

Ignoring a defamation claim can lead to serious legal consequences, including default judgments against you. If you do not respond to a concerns notice or legal proceedings, the court may rule in favour of the plaintiff by default, which can result in significant damages awarded against you. It is important to take defamation claims seriously, seek legal advice, and respond appropriately to avoid escalating the matter. Failure to address the claim can also lead to further reputational damage and legal costs.

How can I protect myself from defamation on social media?

To protect yourself from defamation on social media, avoid making derogatory or harmful statements about others. Focus on discussing issues rather than attacking individuals, and use neutral, non-emotive language. Always verify the accuracy of your statements before posting and consider the potential impact of your words on others’ reputations. If in doubt, seek legal advice to understand the implications of your statements and avoid publishing anything that could be considered defamatory.

How do I prove social media defamation?

Proving defamation on social media involves demonstrating that the defamatory material was published, was considered defamatory by an ordinary person, caused serious harm to your reputation, and you were identified in the material. Collect evidence such as screenshots and witness statements to support your claim. Additionally, issuing a concerns notice to the publisher and allowing them an opportunity to respond is a necessary step before taking legal action.

Who is responsible for defamatory posts?

Both the individual who made the defamatory post and the platform that facilitated its publication can be held responsible. Courts have ruled that social media companies can be considered publishers if they facilitate or encourage the publication of defamatory comments. This means that both the content creator and the platform may face legal consequences if defamatory content is posted and not adequately managed.

How can I avoid being sued for social media defamation?

To avoid being sued for defamation, communicate responsibly and avoid making false or harmful statements about others. Refrain from making derogatory comments about someone’s race, religion, or other protected characteristics. Verify the accuracy of your statements and focus on discussing issues rather than attacking individuals. Seek legal advice if you are unsure whether a statement might be defamatory and avoid identifying individuals unnecessarily.

What is the limitation period for social media defamation?

The limitation period for defamation is one year from the date of the first publication of the defamatory material. This means that a defamation claim must be lodged within this timeframe to be valid. In some cases, the court may grant an extension if it is satisfied that it is reasonable to do so. It is important to act promptly if you believe you have been defamed to ensure that your claim is within the limitation period.

What is injurious falsehood?

Injurious falsehood, also known as malicious falsehood, is a legal tort that protects a person’s business, goods, or services from false and malicious statements that cause economic loss. Unlike defamation, which primarily protects personal reputation, injurious falsehood focuses on statements that harm commercial interests. To successfully claim injurious falsehood, the plaintiff must prove that the statement was false, published with malice, and caused actual economic damage. This provides businesses with legal recourse to protect against harmful false statements affecting their commercial interests.

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