On a Saturday night, you’ve had a falling out or a bad customer experience at a local restaurant. After a few drinks, have you ever thought about logging onto Facebook and criticising, ridiculing, and degrading someone or some business to all and sundry on the internet? If you have, I suggest you stop and think again, because posting such a rant could potentially cost you thousands of dollars. (Social Media Defamation)
It is evident that the relatively recent rise of social media platforms such as Facebook, Twitter, LinkedIn and Instagram have led to greater communication between people both at home and abroad. Typically, they bring people closer together, but they also mean people can easily access a communication platform to broadcast their frustration or displeasure regarding someone or something to hundreds, if not thousands, of people.
In short, think before you type and be wary of what you post or comment on, or even ‘like’. If you don’t, chances are you could soon regret what you’ve typed.
There are signs that Australians are becoming more litigious about social media criticism, with lawyers often being asked to take action regarding such criticism to protect brands, public image, and personal reputation. The main way lawyers can help is by taking legal action under the law of defamation, which is quite strong in Australia.
What is Defamation?
Essentially, defamation refers to something said or written by a person which negatively affects the reputation of another person and is not true or is unsubstantiated. The statement said or written must be intentional and be spread to another person, group of people, or company.
In order to establish defamation, a ‘reasonable person’ test is applied. If a person publishes or posts something that exposes someone to ridicule, contempt, or hatred, in the eyes of a reasonable person, they may have defamed them.
There is a 12 month limitation period for commencing legal proceedings for defamation, which runs from the date the defamatory post or publication arose.
Social Media Defamation
Regarding social media defamation, you should be aware that:
- A person can be defamed through the internet.
- Whilst defamation cases involving the internet and social media are relatively new due to the relatively recent advent of social media, they are on the rise.
- The advent of social media has made it far easier for people to defame other people and businesses.
- Even if a person doesn’t create the original defamatory material, but shares it by forwarding or passing onto other people or groups of people, or just ‘likes’ a post, they can also be found liable for defamation, because they are a conduit for the defamation, just as print media might be.
- Whilst there are several defences to defamation, such as the fact that the statement is true or that it was an expression of an honest opinion, it would be prudent to steer clear of any criticism that is not provably true and is not an honest opinion. Otherwise, you may be found liable for defamation by dispersing information which is an untrue and hurtful statement of fact about another person.
Defamation and Small Business
Small business owners may have a good case in defamation if disgruntled and angry customers write inaccurate and damaging reviews on websites, Facebook pages, LinkedIn pages, or Twitter feeds, for example.
If the defamed small business owner can prove that there was a downturn in trade as a result of the defamatory post, they can be awarded damages much higher than those usually awarded to individuals. This is because damages for hurt feelings and ridicule are currently capped at around $380,000, but damages for economic loss are uncapped and could potentially go into the millions. So, small business owners need to gather evidence of economic loss to have a better claim for damages.
If you think that you may have been defamed or someone is alleging you have been defamed, please give our office a call.