The surge in popularity of social media, beginning in the mid-2000s, has created a number of platforms by which users can connect and engage with one another. From Facebook to Twitter, Instagram to LinkedIn - the list goes on! These sites allow us to create, publish and share content at any time with just a click of a button.
Sadly, while many of these sites have proven to be effective marketing tools, they have also become an outlet for users to vent their frustrations and provide their opinions about anything and anyone. From a legal perspective, this has also given rise to a variety of issues, with users tricked into downloading applications which are infected with mal-ware, having their privacy breached and personal information shared as a result of databases becoming compromised, as well as the rise of defamation for online posts.
Social media users need to be aware that any material they publish may have legal ramifications and it’s important that they understand the potential consequences of their actions. While the defamation laws have not entirely adapted to the phenomenon of social media, posts on social media are subject to defamation laws.
In 2013, a New South Wales Court determined that a number of tweets made by a young man about his former school teacher were defamatory and he was ordered to pay his former school teacher $105,000 in damages. There was also a Western Australia Court case in 2015 where the Court determined that comments made by a woman about her estranged husband on Facebook were defamatory and ordered her to pay $12,500 in damages.
In SA, claims for defamation are governed by the Defamation Act 2005. Publication of defamatory matter of any kind is actionable. This means that a plaintiff can bring an action without the need to prove they have suffered any actual loss as a consequence of the publication of the defamatory matter.
A defamatory ‘matter’ is defined in the Act to include any of the following:
- An article, report, advertisement or other thing communicated by means of a newspaper, magazine or other periodical;
- A program, report, advertisement or other thing communicated by means of television, radio, the Internet or any other form of electronic communication;
- A letter, note or other writing;
- A picture, gesture or oral utterance;
- Any other thing by means of which something may be communicated to a person.
Generally for a defamation action to be successful, the defamed person must establish that the statement made against him or her:
- has been published to the public (this can be by any of the means identified above, including social media);
- identifies him or her; and
- has injured his/her reputation – namely, that it has affected their reputation in a damaging way.
The courts often apply the ‘reasonable person’s’ test in determining whether the material is defamatory. Essentially, they consider whether in the eyes of a reasonable person the material published is defamatory.
If the above elements are present, the defamed individual can issue a claim pursuant to the Act and seek compensation. The publisher and/or person being sued can defend their decision to publish the defamatory matter on a number of grounds pursuant to the Act. This includes a defence of honest opinion, truth, qualified privilege and triviality.
Prior to issuing proceedings, there are certain steps set out in the Act that the defamed individual and the individual being pursued (ie the publisher) can and should take as a first step to try and resolve the dispute, including a requirement to make an ‘offer to make amends’. This ‘offer to make amends’ system is significant as it encourages parties to resolve the matter rather than pursuing litigation, which can often be costly and protracted. Failure to accept an offer that is reasonable can result in the successful party not receiving its costs of the proceedings or only being awarded a lower amount of its costs.
Social networking is indeed a powerful platform of communication and given its now extensive usage, many of us would find it hard to avoid, both in our corporate and personal lives. When used responsibly it offers great benefits, but if used carelessly, it can also become a legal landmine. It is the user's responsibility to always take into consideration the potential legal ramifications of any post they make online and to avoid publishing anything where they may find themselves ending up in Court.
The next time you feel like venting your frustrations, providing a negative opinion or commenting on a post to “get back” at another individual on social media, think twice before posting those comments.