Defamation actions: the high cost of social media posts, comments and ‘likes’
24th May 2018
Rebel Wilson’s massive $4.5 million damages award last year – the highest awarded 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.
Abusive and/or threatening messages sent online can cause immense harm to those who are targeted. If they can also be considered libellous under the law of defamation, the victim can take legal action against the person who posted the online message.
Seeking restitution for defamation now more common
In recent times I have seen an increase in the number of people seeking restitution from those who have 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 can be seen by others.
We have strong uniform defamation laws in Australia; 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 could be regarded by a ‘reasonable person’ as exposing someone to hatred, ridicule or contempt, you could be defaming them.
Generally, if something untrue is published, including online, which 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 who have been trading emotional insults 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. In 2016 a Canberra woman won $180,000 in damages against a man who posted Facebook comments that the ACT Supreme Court ruled had defamed her. (See Reid v Dukic  ACTSC 344.)
In 2014, a high school teacher was awarded $105,000 for defamatory comments made about her by a former student.
A quest for restitution doesn't have to end up in court. The Defamation Act 2005 (NSW) 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 material is actionable without proof of special damage. However, such proof does help the court to assess the amount of damages a plaintiff might receive.
‘Liking’ a Facebook post could be deemed defamatory
There are signs that a defamation action could go much further. In 2017, 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; the ‘like’ click was deemed defamatory.
Commencing legal proceedings
Individuals who feel they have been defamed have one year from publication of the allegedly offensive comment to commence legal proceedings. It is important to keep a record of any defamatory comments, along with any negative effects these comments have had on the individual and/or a business, to increase the chances of a successful defamation claim.
A version of this article first appeared on the Stacks Law Group website, and can be found here.
Anneka Frayne is a lawyer specialising in general litigation at Stacks Law Firm. She recently attained a Master of Applied Law degree majoring in commercial litigation and was promoted to Senior Associate. Anneka works with clients who have a complaint or dispute and wish to have it resolved. She uses her negotiation and communication skills to ensure that clients are clear about possible outcomes, resulting in more amicable and cost-effective results for all parties.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).