Confusing rules around defamation and double standards for who is bound by them are creating considerable headaches for businesses and allowing a “free kick” for digital internet giants, a lawyer has claimed.
Queensland lawyer Travis Shultz recently told My Business’ sister publication Lawyers Weekly that Australia’s defamation laws have created a double standard where, for example, traditional media organisations and print publishers are bound to obey the law to not publish defamatory content, whereas digital giants such as Google, Facebook and Instagram are not obliged to remove any such content.
“We just can’t have two sets of rules for digital and traditional publishers. The playing field currently isn’t level, and it’s time for a discussion as a country about what we expect of all publishers when it comes to taking responsibility for the consequences of defamatory or misleading content,” said Mr Shultz.
Under defamation laws, however, businesses of all size and industry are now considered publishers when posting on social media, editing their websites or even writing emails.
The Arts Law Centre of Australia website notes that for defamation to be successfully proven in court, the plaintiff (or victim) needs to show that a communication:
- has been published to a third person;
- identifies or is about them, and
- is defamatory.
Yet what these points actually mean, and how they can be interpreted, is less than clear.
My Business asked Peter Coggins, a defamation expert at Shine Lawyers, to clarify these points for business owners and operators:
What is the definition of published?
Published, in the context of defamation, does not necessarily mean the written word, Mr Coggins said.
“It also includes spoken words and can even include gestures. This was formerly known as slander,” he said.
Other forms of non-written defamation can include images, with a photo circulated last year leading to defamation proceedings.
What is the role of “a third person”?
This definition of saying something to a third person is also somewhat misleading.
“The ‘third party’ who receives the publication doesn’t have to be known to the defamer or the defamed,” said Mr Coggins.
That includes social media posts, which may be specifically directed at one person, but can be easily viewed by anyone else.
What is meant by “is about them”?
As the definition suggests, you don’t need to specifically name someone in order to defame them. Where the waters get muddied is in proving that someone has been specifically identified, Mr Coggins noted.
“The target of a defamatory attack doesn’t have to be specifically identified in the written or spoken publication,” he said.
“However, the plaintiff does have to prove that they could be reasonably identified in the publication by those who have knowledge of other facts which enable them to identify the plaintiff.”
What is considered defamatory?
Probably the most basic question of all, though, is simply what is considered to be a defamatory comment or action?
According to Mr Coggins, there are two parts to this.
“If you are referring to what constitutes a defamatory publication, then that is a publication which causes reasonable people to think less of or shun the defamed person, or subject them to hatred or ridicule,” he said.
“If you are referring to what a defamation action is supposed to compensate a plaintiff for, then traditionally, defamation compensates a plaintiff for their hurt feelings, stress and embarrassment caused by the publication and the need to have their reputation vindicated (and in Australia caps apply to these damages).
“A plaintiff can also seek special damages, which compensates them for economic loss caused by the defamatory publication.”
The goods news, though, is that using general terms, rather than specifics, will – usually – keep you out of trouble.
“Mere vulgar abuse isn’t traditionally regarded as being capable of damaging reputations,” said Mr Coggins.
“A general derogatory term like ‘idiot’ could be defamatory; however, defendants are entitled to rely on a number of defences, and one of these is that the publication was trivial and unlikely to cause the plaintiff any harm to their reputation.”
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