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Defamation in the Digital Age: What Students Need to Know

Australia has been referred to as the defamation capital of the world. Hollie Hughes explores how students can stay safe online.

Not many people are aware of the risks associated with posting on social media, especially students.

Recent events have shown us popular social media platforms including Facebook, Instagram and Twitter are not safe spaces to vent your thoughts and the law of defamation in particular can have costly consequences for students. Therefore, it is crucial students are aware of the risks associated with social media usage in the digital era.

What is defamation?

Defamation law protects people or businesses from false or damaging statements being made about them which can negatively impact their personal or professional reputation.

People may believe they have been ‘defamed’ if someone says or implies something negative about their character but whether this is defamatory depends on factors such as its context and to whom it was said. Words and other matter (such as cartoons) can be defamatory by innuendo – that is, where the reader has to put two and two together to understand the defamatory meaning.

Defamation laws extend to online publications and an increasing number of people and businesses are facing significant financial consequences for posting defamatory material online. Making a defamation claim involves suing a person or business for loss of reputation caused by something that person or business has published or distributed.

What happens if I defame someone?

In recent years, defamation claims have become more prominent given the nature and volume of content being published on digital platforms every day. Defamation law aims to strike a balance between permitting the free distribution of information, ideas, and opinions, and protecting individuals and small businesses from having their reputations tarnished or destroyed.

It is absolutely possible to defame people on social media in Australia and the defamed individual may bring proceedings against you. In order to bring a successful defamation case against an individual who posted defamatory material on social media, the following must be satisfied:

  1. The material must be defamatory;
  2. The material must identify the plaintiff; and
  3. The material must have been published to a third party

A court decision from March 2020 showcased that harsh penalties can be imposed for defamatory statements published on social media. The Supreme Court awarded $110,000 in damages in relation to defamatory comments made on a Facebook page. In this case, a series of posts on a public Facebook page called “Narri Leaks” were made by the defendant Mr Stoltenberg. The post implied Mr Bolton, the Mayor of Narrabri Shire Council, was ‘corrupt, dishonest and intimidating in his role as Mayor’. Ms Loder, the other defendant, made “comments” on those Facebook posts.

Mr Bolton commenced defamation proceedings in the Supreme Court against both Mr Stoltenberg and Ms Loder. It was found by the court the Facebook posts were indeed defamatory, and Mr Stoltenberg had no defences available to him.

How can you protect yourself?

To prevent a defamation issue arising in the first place, try to avoid making defamatory statements. This includes distributing information which may be offensive or damaging to someone’s reputation. This can include “sharing” a defamatory post which you did not create.

If you are accused of social media defamation, the best thing you can do is to immediately remove the offending post and apologise to the person affected.

If the above action is not enough, the Defamation Act 2005 provides a mechanism which allows publishers to make offers to make amends to the person who has allegedly been defamed.

Firstly, the person who claims they have been defamed may give the publisher a ‘concerns notice’ setting out their grievance. Then, the publisher can then make the offer to make amends. If the aggrieved person does not accept the offer and the offer was reasonable, the offer itself can be a defence in defamation proceedings.

Please note: this article should not be substituted for legal advice. If you have concerns regarding the subject matter of this article please gain legal advice. If you are unable to pay, please visit the University of Newcastle Legal Clinic website as you may be eligible for legal advice free of charge.

Feature image from Unsplash, no changes made.

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