Defamation actions: the high cost of social media posts, comments and “likes”
Rebel Wilson’s massive $4.5 million damages award – the highest by a court for defamation damages in Australian history – signals that the courts are increasingly prepared to make big organisations pay big time for defamation.
The Victorian Supreme Court decision for Wilson against Bauer Media, publisher of Woman’s Day, Australian Women’s Weekly, New Weekly and OK! suggests that the courts are willing to defend people’s reputation, not only against large media organisations, but also in response to ugly and abusive posts on social media. (See Wilson v Bauer Media Pty Ltd  VSC 521.)
Victims can take legal action under law of defamation
Everyone needs to be careful what they post, like and comment on in social media, whether it be on Facebook, comments on business websites, or sledging individuals via Snapchat, Instagram or Twitter.
Not only can abusive or threatening messages sent online cause immense harm to those who are targeted. They can also be considered libellous under the law of defamation and the victim can take legal action against the person who posted the online message.
Seeking restitution for defamation now more common
I have seen an increase in recent times in people seeking restitution from those who besmirched their good name or business reputation online. This can include libellous and untrue comments posted on a company’s website or Facebook site that are seen by others.
We have strong uniform defamation laws in Australia and you cannot publish whatever you like. That applies not only to mainstream media, but to social media as well.
What is defamation?
The legal test for defamation is relatively simple – if you publicly write something that exposes someone to hatred, ridicule or contempt as regarded by a “reasonable person”, you could be defaming them.
Generally, if something untrue is published, including online, that lowers a person’s estimation in the eyes of other people, or causes them to be avoided or shunned, that utterance might be considered defamatory.
Businesses taking action in response to untrue and damaging reviews
Usually the court will not get involved if the sledging is between a couple and emotional insults have been hurled for some time, but individuals can take action for defamation.
A small business of fewer than ten employees can take legal action if a person wrote untrue and damaging reviews about the business. The amount of damages can be influenced by how much the business suffered as a result.
There is a defence if the defendant can prove that the defamatory imputations are “substantially true”, that they are an expression of opinion, not a statement of fact, or that they represent a “fair report” of proceedings of public concern.
Substantial sums can be awarded for defamation
Reputations are important and can be protected under the law. A Canberra woman last year won $180,000 damages against a man who posted Facebook comments that the ACT Supreme Court ruled defamed her. (See Reid v Dukic  ACTSC 344.)
In 2014 a high school teacher was awarded $105,000 for defamatory comments made by a former student.
Seeking restitution doesn’t have to end up in court. The NSW Defamation Act provides mechanisms for publishers to make amends, including taking down the message, issuing an apology, or some out-of-court settlement.
Under the law, publication of defamatory matters is actionable without proof of special damage, however it would help the court to set the amount of damages the plaintiff might receive.
“Liking” a Facebook post could be deemed defamatory
There are signs that defamation action could go much further. Earlier this year in Switzerland a court ruled that clicking the “like” button on a Facebook comment indicated support for the original post which described someone as racist or fascist, and the “like” click was deemed defamatory.
If you feel defamed, seek legal advice. You have one year from publication to commence legal proceedings. Record the comments when you see them and keep records on the effect the posts have on you and your business.
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