Defamation an issue for social media users

University of Notre Dame law lecturer Jacques Duvenhage was asked about how defamation cases came from social media use www.communitynews.com.au/news/The-consequences-of-social-media/7678992.

Below is the full interview.

1. Do you think there is a case to say defamation cases have increased/become more publicised as social media use becomes more prevalent?

Social media has become part of our daily activities and with a ‘click’ of a button news and information can spread rapidly through social media posts and re-posts, not just amongst friends, but also globally. This is causing an influx of defamation cases, not only nationally, but also internationally. Numerous law firms have stated that they have received more defamation cases regarding social media in the past couple of years. This is evident that there is a definite increase in defamation cases regarding social media.

2. How has the way defamation is approached/defined by law changed since the introduction of social media?

A general definition for defamation include ‘when somebody speaks in a defamatory way to another person (or in the presence of a third party) or when defamatory material is published’. In this respect, as soon as a new social media and defamation case appear, the following statement from Elkaim SC DCJ in the Mickle v Farley [2013] NSWDC 295 case comes to mind: ‘Social media spreads easily by simple manipulation on mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication’. Defamation has not changed by law, but through recent case law such as Mickle v Farley [2013] NSWDC 295, Dabrowski v Greeuw [2014] WADC 175 and McEloney v Massey [2015] WADC 126, the definition of defamation is already broad enough to include social media and internet defamation scenarios.

3. How dangerous do you think social media is when it comes to potential defamation lawsuits?

The danger with social media comes when people display their emotions on social media platforms which could reach any audience across the globe before realising the severe consequences such a post might have. It should be remembered that people who either re-post or re-tweet this material could also be held liable for any defamatory remarks. By being emotional and posting carelessly is dangerous and can lead to potential defamation lawsuits.

4. In what circumstances does the “opinion” defence not apply when it comes to social media?

Part 4 Division 2 of the Defamation Act 2005 (WA) provide numerous defences, which include ‘honest opinion’, ‘justification’, ‘contextual truth’, ‘absolute privilege’ and more. For the ‘honest opinion’ defence to succeed, section 31 of the above mentioned Act states that the post or remark must be an expression of an opinion rather than a statement of fact, the opinion must be in the interest of the public and the opinion is based on proper material. The recent decision of McEloney v Massey [2015] WADC 136 dealt with the ‘honest opinion’ defence with regard to social media and defamation. Although there were numerous defences raised in this case, Schoombee DCJ found that the ‘imputations on the Facebook page were defensible as either fair comment or honest opinion… but… this does not mean thata member of a Facebook page has carte blanche to defame service providers or other persons or that all statements made necessarily qualify as opinions’. Therefore, the ‘honest opinion’ defence may not apply in matters where the above mentioned requirements as set out in section 31 are not met. For example where it is proven that it was not an opinion but rather a clear statement of fact. Even though the opinion defence has succeeded in the above mentioned case, it should be remembered that each case is dealt with on its own merits.

5. What do you think are the most common mistakes people are making when posting on social media that can lead to a defamation lawsuit?

As mentioned, people’s emotions play an immense role when posting on social media. Also, being irrational and uneducated about the consequences of defamation on social media as well as the weightiness of the posts can lead to a defamation lawsuit.

6. What are some tips you can offer that will allow people to be critical of a service/tradesperson/shop etc without it leading to a defamation lawsuit?

Firstly, people need to think carefully and be unambiguous when they post on social media. Secondly, people should stay calm and not post when they are in an emotional state. Thirdly, it is important for people to clarify whether the post is only an opinion or a statement of fact. Lastly, the person posting the negative or defamatory comments should be willing to apologise for the inconvenience they have caused.

7. Anything else you would like to add?

Communities should be made aware of the severe implications which social media can bring about. It is important to remember – ‘think before you post’.