Steer clear of costly social media stings

Why you should be careful about what you post about others

by Trina McLellan | Reporting4Work | March 25, 2019

MacBook Pro black keyboard

WHEN someone publishes derogatory or false statements about another living person without justification, defamation laws apply.

Australia has quite strict defamation laws, ones that come with expensive penalties, but relatively few internet users have a strong understanding of how this area of the law works.

Since 2005 – when all states and territories agreed on a common framework for defamation – each jurisdiction has, increasingly, seen those who have posted unwisely on social media in its courtrooms.

It may come as a surprise, but social media posts, comedy, cartoons, satire and other forms of entertainment are not exempt from defamation actions. Nor are re-posts of other people’s defamatory content.

With the growing number of social media defamation cases clogging up courts, some in legal circles are now agitating for these sorts of matters to be moved to a tribunal or similar body so that only the most serious ones are heard by judges and, in some cases, a jury of four people.

So, a rudimentary understanding of how social media posts can easily be the subject of a civil or even criminal defamation action is important for all internet users. (The vast majority of defamation actions in Australia are civil.)

Firstly, for someone to bring a civil action for defamation there needs to be three things:

  • identification of the complainant/s (target/s) is uncontested – this can be overt identification, as in naming them outright, or covert but still obvious to at least some people
  • imputation (the defamatory meaning) is anything that could bring the complainant into disrepute, causing reasonable persons to shun, ridicule or avoid them, even if the imputation had no actual effect on that person’s reputation, the defendant did not intend to defame or that the imputation’s meaning was derived from innuendo rather than an overt statement
  • publication can mean as little as a third person seeing/hearing or even overhearing the imputation … or as many as millions bearing witness via traditional or social media channels.

In Australia, defamation is an area of law where the onus of proof for these three pre-conditions is on the complainant. Once these elements are met, though, a civil court will allow a case to proceed.

On the other hand, once a case proceeds, the defendant is presumed to be guilty and must convince the court that either (a) they did not defame the complainant/s or (b) they had an acceptable reason for defaming them.

And, as ever, ignorance of the law is no defence.

… all defences to a civil charge of defamation will be null and void if it can be proved the imputation/s about an identified person (or people) was/were published with express or implied malice.

Secondly, when a civil defamation action reaches this stage, the defendant may be able to draw on a range of possible defences:

  • truth (justification must be proven)
  • contextual truth (where the target is not further harmed by the imputation/s because of other more serious truths – e.g., calling someone a fraud who has already been convicted of a more serious crime)
  • absolute privilege (only courts and parliament can offer this)
  • qualified privilege
    • for provision of certain information where there is a duty to publish/share details in legitimate transactions (such as discussing with police what was seen/heard or reporting misdeeds in a workplace)
    • discussion of government or political matter – under the implied right to freedom of political communication
    • the rarely used “apply to attack” defence where someone is responding to a previous provocation or defamatory matter
  • fair and accurate report of proceedings of public concern (e.g., parliament, international government organisations, international conferences, international courts, local government, learned societies, sporting or recreation bodies, trade unions, shareholders)
  • publication of public documents –such as parliamentary reports, court judgments, etc.
  • fair comment/honest opinion (but must be based on proper material evidence)
  • triviality (where the target/s would be unlikely to suffer any harm)
  • innocent dissemination (where, for instance, a newsagent doesn’t realise a newspaper or magazine being sold contains defamatory matter, or an internet service provider will not responsible for publishing defamatory content … as long as they were not aware of it).

It may come as a surprise, but social media posts, comedy, cartoons, satire and other forms of entertainment are not exempt from defamation actions. Nor are re-posts of other people’s defamatory content.

iPhone home page with social media icons showing

However – and most importantly for social media users – all defences to a claim of civil defamation will be null and void if it can be proved the imputation/s about an identified person (or people) was/were published with express or implied malice.

Malice is the desire to harm someone and that harm could be physical, mental, emotional, social, work-related or financial.

So, rash posts that lash out at identifiable others can more readily be found to be malicious, especially if there is a history of such remarks.

Here is why – and where – many defendants in social media defamation cases find themselves having made a hellishly expensive mistake.

In Queensland … the cap on a penalty for a single imputation … stands at $389,500 (2018 figure).

When a finding of defamation is made, the extent of eventual damages will depend on how severe and widespread the reputational damage – or potential reputational damage – has been.

In Queensland, for instance, the cap on a penalty for a single imputation is adjusted in line with inflation each year and, from its 2006 base of $250,000, today it stands at $389,500 (2018 figure).

In addition to the initial penalty – known in legal circles as general and compensatory damages – defendants may also face:

  • special (uncapped) damages to compensate the complainant for loss of business or income or incidental damages as a result of the defamation
  • aggravated damages (where malicious intent or ill will has been proven)
  • court costs plus legal costs (including interest) for the other party/parties.

So, you can imagine in a case where multiple, published imputations about the complainant were found to be proven, the defendant could very well face certain financial ruin.

This was highlighted recently in a Queensland defamation case that saw an expensive outcome for the defendant.

… defamation can come under Queensland’s Criminal Code (s365) and, in such cases, the maximum penalty for such an offence is a three-year prison term.

Since the uniform defamation laws came into play in 2005-6, a civil action for defamation can now only be brought by individuals or small groups of identifiable people – such as a family group, a board of directors, or a business with less than 10 employees that is not part of a larger corporation – and by not-for-profit organisations.

While larger businesses and for-profit corporations cannot bring a defamation action, they can opt instead to bring civil claims for “injurious falsehood”.

In such cases, however, they must be able to prove (a) any imputations published were false, (b) that those imputations caused actual financial harm and (c) that there was malicious intent in their publication.

There is no cap on any penalties imposed if the defendant is found guilty of injurious falsehood.

… social media postings can trigger actions under other laws, too – e.g., stalking, contempt, the Australian Consumer Law, breach of copyright or intellectual property, certain privacy provisions and even anti-terrorism.

Fallout from a defamatory or even derogatory post may go well beyond legal problems. Relationships between the parties will be publicly and privately compromised.

The poster’s reputation and their motives for making such posts may well be questioned by those who are able to view their social media accounts.

If the instigator so readily publicly shames someone, their audience of friends and family may question whether they, too, could receive the same treatment, eroding trust and jeopardising social bonds.

social media platform ban messages

Any social media platform involved may also take action by temporarily or – depending on the seriousness or repeat nature of the posts – permanently blocking access for the perpetrator. 

Finally, in certain circumstances where the interests of the broader public are concerned, defamation can come under Queensland’s Criminal Code (s365) and, in such cases, the maximum penalty for such an offence is a three-year prison term.

Criminal defamation is said to occur when a person publishes defamatory material, (a) knowing it to be false, or (b) without having any regard to whether it is true or false and, (c) in so doing, causes serious harm to another.

As in most criminal cases, the intent of the defendant – the legal term is mens rea – must be proven. This can typically be established in one of five ways:

  • intent – the state of mind where they desired to carry out a wrongful action, knowing what the results will be, and was reckless regarding the general or specific consequences
  • knowledge – an awareness of facts that can be used to establish their intent (e.g., previous published threats to disclose matters or make accusations)
  • criminal negligence – wanton or reckless disregard for the lives and safety of others that could lead to injury or death, including doing anything or omitting to do anything that is a duty to do so
  • recklessness – consciously taking an unjustifiable risk that a reasonable person would not take
  • wilful blindness – a deliberate closing of one’s mind to the possible consequences of one’s actions (do not ask to know the truth because you do not want to know).

Only if the person charged with criminal defamation can prove that one of the civil defences applies in their case will their actions be seen to have a lawful excuse.

It is also wise to remember that, while the old adage “you can’t defame the dead” is technically true, anyone who publishes defamatory content about a deceased person – and in so doing diminishes the reputation/s of their surviving loved one/s or colleague/s – could potentially still face an action for civil or criminal defamation of the living.

Of course, social media postings can trigger actions under other laws, too – e.g., stalking, contempt, the Australian Consumer Law, breach of copyright or intellectual property, certain privacy provisions and even anti-terrorism.

While some of these have very serious consequences, none usually has quite the same financial and reputational sting as being found guilty of defamation.

_______________

Trina McLellan is freelance journalist, social media poster and former teacher of media law. This article is provided for educational and information purposes only and should not be relied on in particular circumstances without formal legal advice from a qualified defamation lawyer.

One response to “Steer clear of costly social media stings

  1. Thanks Trina! I knew there was a reason why I resisted being forced in to posting certain things on social media. I’m glad I simply incurred the wrath of those who tried to force my hand.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s