Defamation laws were initially designed for a world of physical publication. Due to the emergence of social media, the world spends so much more time online, meaning the implementation of defamation laws have shifted to follow suit.
Defamation on social media does not always resemble defamation in traditional print media, as the internet allows people to easily post across different websites, no matter where they are in the world. Hyperlinks and perceived anonymity also simplify the process of spreading defamatory comments online.
Australians spend an average of 6 hours and 13 minutes online every day for work, socialisation and entertainment. The continually increasing amount of time spent online means defamation is evolving in a similar way to our communication. While social media sites such as Facebook, Instagram and Twitter can be useful for keeping up to date with news or communicating with friends, they can also be home to defamatory comments that unfairly target individuals.
As defamation on social media becomes increasingly common, changing defamation laws are attempting to resolve the challenges that arise with changing means of communication. If you find yourself suspecting that you have been defamed, it is best to seek legal advice from an online defamation attorney due to the complex nature of changing defamation laws.
If you are looking for an internet defamation lawyer in Sydney, please get in touch with our Disputes team for expert legal advice.
What is Online Digital Defamation?
While online digital defamation is a relatively new concept, the same rules that apply to traditionally published forms of defamation are also relevant for those online.
The Defamation Act (NSW) 2005 defines defamation as comments that are untrue or unsubstantiated and are intended to harm another party’s reputation. Defamatory material can be photographs, news articles, published comments or even spoken words without a written record.
Online defamation describes defamation that has been published onto the internet. The publication of defamatory material can occur on any internet platform, including but not limited to:
- Social media, such as Facebook, Instagram, Twitter, LinkedIn, etc.
- Chat rooms and message boards
- In public media websites (i.e. local or regional newspaper articles or letters to the editor)
- Blogs and blog comments.
What is The Criteria for Online Defamation?
A vast amount of defamatory material exists online. The perceived anonymity of the internet is often abused by website users to post cruel and untrue comments that target a specific person. Due to the ease in which anyone can disseminate misinformation through social media, online defamation impacts a person’s reputation with an unprecedented velocity.
The High Court’s famous decision in Fairfax Media Pty LTD vs Voller 2021 rejected the argument that media platforms are not responsible for the comments published by third parties on their websites.
Since then, everyone who is involved in publishing defamatory material is potentially liable, meaning that they may be sued. Even if you own the blog or website that has defamatory material published by others within the comment section, you may still be liable for it according to Australian law. You can also be held liable for defamation if you share or repost a defamatory comment made by someone else. For now, website and blog owners should be careful to monitor the comments made on their social media accounts to ensure defamatory comments are not present
Of course, not all online material that could be considered ‘mean’ or ‘unfair’ is defamatory. There are a series of elements that must be met in order for a comment to be defamatory. Defamation criteria specifies that in order for online material to be considered defamatory, the following points must be met:
1. Material was published and shared to at least one other person besides the defamed party
The defamatory material must have been shared with at least one other party, excluding the plaintiff.
2. The statement or material was untrue
Defamation occurs when a statement is published that is inherently untrue. Mean or disparaging comments are not necessarily defamation.
3. The material identifies the potentially defamed party
The published material must identify the potentially defamed party. Usually this means that the person’s name is explicitly revealed within the material. However, this may not always be the case. The defamed party could still be considered identifiable if other, specific information is provided within the material that divulges their identity, such as photographs, title or description.
4. The material has caused reputational harm
It must be proved that an individual’s reputation has been discernibly damaged as a direct result of the defamatory material. This damage could include job loss, harassment by the media, or being shunned by family or friends.
Common Defences For Online Defamation
In order to protect freedom of speech and opinion, there are a number of defences for defamation under common law and the Defamation Act (NSW) 2005. These defences include:
Justification (Defence or Truth)
If a comment is true, then it cannot be defamatory. Where the truth defence is applicable, the plaintiff in the matter does not have to prove falsity.
The contextual truth defence describes instances where the imputation is substantially truthful, even if it possesses minor details that stray from the truth.
In order to meet the honest opinion defence, the following specifications must be met:
- The material is based on an honest opinion
- It was considered to be made about a public interest
- It was based on substantially true materials.
However, proving that a comment made was an honest opinion is more complicated than simply stating ‘I believe’ or ‘I think’ before writing a defamatory comment. It is important to remember that statements of opinion may still be portrayed as matters of fact within their context.
Statute of Limitations For Online Defamation
Under Section 14B of the Limitation Act (NSW) 1969, individuals must seek legal action within one year following the publication of the defamatory material.
In rare circumstances, the court can extend this period to three years if it is conceded that the case’s specific circumstances made it unreasonable for the plaintiff to seek legal action within one year.
What Are My Options If I Believe I’ve Been Defamed Online?
If you believe you have been defamed online, you should first contact the person you believe has defamed you and ask them to remove their online comment.
If the person refuses to remove their comment, it is recommended that you seek independent advice from a lawyer as soon as possible. Even if the defamatory comment was made anonymously, it is still possible to commence legal action through retrieving the user’s IP address to locate their identity.
Defamation can result in a civil lawsuit. This means that if you are defamed online, you have the option of suing the person behind the defamatory comment. If your case is successful, you may be entitled to damages from the accused party.
Get In Touch With Us Today
Defamation is a complex area of the law that has been subject to significant legislative change over the past several decades in an attempt to keep pace with modern technology.
If you suspect that you have been defamed online, or you have been accused of online defamation, please get in touch with our experienced team for timely and expert legal advice.