Online defamation: The legal perils of social media postings

Business owners who use corporate websites or social media platforms with user comments functionality need to be aware of their exposure to potential defamation actions, and how to reduce it, explain lawyers Dan Brush and Adam Meyer.

Business owners who use corporate websites or social media platforms with user comments functionality need to be aware of their exposure to potential defamation actions, and how to reduce it, explain lawyers Dan Brush and Adam Meyer.

Businesses that maintain corporate websites with user comments functionality or use corporate pages on social media platforms must take steps to reduce their exposure to potential defamation actions from third parties discussed on those websites.

Published social media messages or tweets can be deleted by the sender, but once they’re published, the message can be saved or forwarded – even if the writer deletes the original.

A tweet or post written on behalf of your business or posted on your business’s website may give rise to defamation action in Australia and in any overseas jurisdiction where a person suffers damage to their reputation due to a false statement.

Twitter and US defamation decision
A California court recently heard one of the first cases of alleged defamation involving Twitter. The claim arose from a single tweet by singer and actress Courtney Love. The tweet sent by Love suggested that her lawyer at the time had been “bought off” when she wouldn’t help Love in a legal matter. Love claimed that the tweet was intended for a single recipient and not meant to be posted publicly and also claimed that she deleted the tweet as soon as she realised that it had been posted publicly.

The jury verdict in California proceeded on the basis that Twitter messages could be defamatory and would be evaluated by the same rules that have applied to traditional media defamation cases in the US. Jurors determined that Love's tweet was inaccurate and contained false information, but the musician didn't know it wasn't true at the time the tweet was made. As a result, the action against Love was not successful.

Intentions of the writer may not be relevant in Australia
In Australia, a person may bring defamation proceedings if he or she considers that the publication of a statement caused damage to their reputation. When defamation is alleged in Australia, the writer or publisher can assert various defences to the alleged false statement, including: 

  • The statement and the alleged imputations at issue were true when made.

  • The statement was a "fair comment" or "honest opinion" – that is, the statement is on a matter of public interest, it is comment or expression of opinion rather than a statement of fact and is based on proper material.

  • The statement was made in circumstances attracting privilege.
  • It was not the primary publisher of the statement.
  • It did not know, nor ought reasonably to have known, that the statement was defamatory. 
  • The company’s lack of knowledge was not due to negligence. 

In Australia, legislation has limited a corporation’s ability to sue for defamation. Defamation actions by companies are limited to not-for-profit corporations, or corporations that employ fewer than 10 people and are not a government body or authority.

However, the directors of a corporation may bring defamation proceedings if they were defamed as individuals. Companies may bring proceedings for “injurious falsehood”, although it is generally more difficult to bring such a claim because of the evidentiary burdens involved.

 

Liability of the publisher?
Anyone who maintains a webpage that allows user content or uses a social media account such as a corporate Facebook page may be liable in defamation for its own statements – and for those made by others posting on their Facebook page. A publisher may avoid liability if it is an “innocent disseminator” of the defamatory statement; that is if a company may be liable, however, if it knew or ought to have known that a statement on its Facebook page or website is defamatory and it fails to remove it. 

If a company becomes aware of potentially defamatory material on its Facebook page or website, it should remove that material as soon as possible to avoid the risk of defamation proceedings. This is admittedly a complicated area of law, so if you have questions, be sure to contact your lawyer. 

Dan Brush is a special counsel in the Sydney office and Adam Meyer is a senior associate in the Melbourne office of CBP Lawyers.

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