Navigating Defamation and The Internet – What You Need to Know
At some point in your life you may have done one or more of the following things:
- Written a message or an online post about someone not knowing if it was completely true;
- Shared a post about someone without checking the facts or the source of the information you shared;
- Written a bad review online or to a friend about certain professional or small business and exaggerated their “terrible” service; or
- Written something harmful about someone else, but thought it was ok because you did not use their name.
This conduct may have caused a disagreement with someone, it may have harmed a friendship, or it may have caused no consequences at all. You may have thought that it’s reasonable to engage in this kind of online behaviour because everyone is online and everyone does these things, right?
Well, not necessarily.
In publishing information about another person that could affect their reputation, you may have engaged in defamatory conduct and you may be liable for damage caused to their reputation under the law.
What is defamation?
Defamation occurs when something is published about someone, which would lower their reputation in the eyes of the ordinary reasonable person. In Victoria, defamatory conduct falls under the Defamation Act 2005 (Vic). Three elements must be present in order to bring an action for Defamation against someone:
- A publication conveys a defamatory meaning or imputation;
- A publication identifies, or is capable of identifying, the plaintiff as the person defamed; and
- The defendant published the defamatory material to at least one other person.
You may have heard the terms slander and libel, especially if you have viewed TV legal-dramas such as Suits or Boston Legal. Simply put, libel is the publication of defamatory material in permanent form (published), whereas slander is non-permanent (said out loud, in unrecorded conversation.) In Victoria, the Defamation Act has abolished the distinction between libel and slander. It is also important to note that an action for defamation can be brought by a plaintiff against a defendant without the plaintiff needing to prove any particular damage has occurred (s 7, Defamation Act).
How does defamation occur?
“Publishing” means to write something that will be received and read by others. This includes articles, emails, Facebook posts, text messages, print media, a letter, a poster, even a note passed between people. If someone writes a post online, and it is uploaded and read by even just one person, under the law, it is considered as published material. This element of defamation is generally easy to prove to the Court as all that is needed is one witness to confirm they have read the material. Proving that a post has been liked or shared on social media could be enough to satisfy this element of the offence.
A Purely Hypothetical Example: I am online on Instagram one day and I see that my ex-boyfriend, Steve, has started a small local business selling pot plants. I do a quick search and see people are raving on Instagram, Facebook and Google about how great Steve’s plants are and how nice he is. I am infuriated. I hate this guy. Steve was always going to the football with the lads and standing me up, he forgot about my birthday and went golfing instead and Steve does not even like dogs. How anyone can think Steve is nice is beyond me. I cannot stand seeing him succeed like this. So, I jump on Google and write the following review about his fancy pot plant business:
“I recently purchased plants off this guy and they all died the very next day. No value for money. His staff were so rude to me, and when I was purchasing plants off him, he made sexist comments and I caught him staring directly at my chest… gross! If you are looking to buy pot plants take your business elsewhere!”
(Pretty petty right?)
To work out whether my conduct constitutes defamation, first, we ask – have I published something?
Yes, I have made a post to google for the world at large to read and there is a very high chance someone will read it. Most of the time in defamation cases this element is not at issue.
Then, we look at what imputations can be drawn from what I have written, namely that:
- Steve sells products that are of poor quality;
- Steve’s small business has poor quality customer service;
- Steve is sexist and harbours misogynistic attitudes;
- Steve is a creep; and
- Steve is an untrustworthy businessman, does not behave appropriately and is unprofessional.
The next element we look at is whether these imputations would lower Steve’s reputation in the eyes of the hypothetical Ordinary Reasonable Person (Lewis v Daily Telegraph (1964) AC 234).
Who is this Hypothetical Ordinary Reasonable Person? This is a hypothetical ‘average Joe’ plucked from the streets who represents a median view of our society. The Ordinary Reasonable Person is a gauge used by the Courts to identify when something would lower a reputation, raise a reputation, or not have any effect on a reputation at all. As our society’s values and general opinions form and change, so would the opinion of the Ordinary Reasonable Person.
For example, 100 years ago the imputation that an unmarried couple were living together may have lowered their reputations in the eyes of society, whereas today, this kind of living arrangement is largely accepted as a social norm and would be unlikely to affect someone’s reputation at all.
In our fictional “Steve” scenario, it’s fairly safe to say that the mere imputation that Steve is a creep would be enough to lower poor old Steve’s reputation in the eyes of the Ordinary Reasonable Person, not to mention the other imputations I made in my post which would also have a detrimental effect.
So, I have created a publication that has conveyed a defamatory meaning, which identifies Steve, and I have published the material for others to read. Thus, it is highly likely that I have engaged in defamation and on these facts, it appears I would be liable for damages should Steve wish to issue proceedings against me.
Furthermore, as I never actually purchased plants from Steve’s business nor interacted with his staff, I don’t have any factual basis for what I have said on Google and I have no legal defence for what I have posted online.
What if I said something about someone online, but I didn’t name names?
This is a question that our firm has been asked a lot and the answer is that it depends. Not naming someone or specifically identifying them in the material does not get you off the hook automatically. If you send or post information to an audience of people who will be able to draw a conclusion about who you are talking about, and that person will be able to prove it, then you may still be liable for publishing defamatory material (Cummings v Fairfax Digital Australia & New Zealand Pty Ltd  NSWCA 325; Fairfax Media Publications Pty Ltd v Pedavoli  NSWCA 237.)
If we look at the fictional example of Steve, you will note that I referred to Steve as “this guy.” I didn’t name Steve, but the reader may be familiar with the business and be able to easily draw the conclusion that I am talking about Steve in my post. Even if the reader is not familiar with Steve, the information they need to be able find out who I am talking about is only a click away from my post.
What if I said something about someone that I know to be true?
Honest belief and truth are a defence in defamation (Defamation Act 2005, s 25). The issue is that you will need to prove to the Court that what you said was true, or that you held an honest opinion about the subject (Defamation Act 2005, s 31). The onus will be on you as a defendant to prove this, meaning you must have good evidence to back up what you have said, or why you believed it so strongly.
If I had purchased plants from Steve and the plants did die the next day, receipts, transaction records and before and after photos of the plants would be key evidence to my defence of truth
What if I did not write a post or a message but I shared a link to a publication on my own platform?
If you have disseminated defamatory information, a Court may view this that you’ve adopted it as your own (Lewis v Daily Telegraph Ltd (1964) AC 243). Therefore, you can be held accountable in the same way an original publisher can be, and you may be liable for defamation.
It is also important to note that if your own post or message is re-published or re-posted by someone, you may be liable for that post too in the circumstances where re-publication was a reasonably foreseeable risk (Cummings v Fairfax Digital Australia and New Zealand Pty Ltd  NSWCA 325).
Why is defamation important?
Everyone has a right to their reputation. This Right is recognized under section 13(b) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Defamation laws are in place principally to stop people from maliciously saying whatever they like about one another and causing irreversible harm without justification. The right to reputation must be balanced against our right to freedom of expression (s 15) this is where defenses such truth and honest belief come into play.
It is also important to note that corporations cannot bring an action against a person for defamation (s 9, Defamation Act). This law has stopped large corporations who have infinite recourses from threatening protesters and whistle-blowers with a SLAPP (Strategic Litigation Against Public Participation i.e. expensive legal battles individuals often can’t afford). This law allows individuals to hold corporations to public scrutiny should they have some sort of criticism or grievance. Under s 9, a business is considered a corporation if it has more than 10 employees and is not related to another corporation.
We all have views and opinions to express and we should be able to have informed and robust online discussions and communications with each other. We should be able to call out the poor and harmful behaviour of others. Social media has proved to be an important platform in this regard. But in a world of online gossip and “fake news,” the issue of defamation is becoming more and more prevalent.
Whenever we are presented with a case of defamation, I always think of a great quote from Mr Bernard Meltzer:
“Before you speak ask yourself if what you are going to say is true, is kind, is necessary and helpful. If the answer is no, maybe what you are about to say should be left unsaid.”
As a general rule, Mr Meltzer’s words rings true to the legal concept of defamation.
When writing something about other people, it is important to remember that what we say about them needs to be fair and within reason. It is crucial that we rely on facts to be able to back up our claims about others and realise the damage that can be done if proper caution and care is not taken.