“If it’s posted on Facebook, if it’s tweeted, if it’s a comment on LinkedIn, it’s publishing. So the statement has been published, which then brings it within the confines of the Defamation Acts around Australia,” explains Mark Gardiner of Teddington Legal in an interview on the My Business Podcast about common legal issues facing SMEs.
“I should preface this by saying I’m not a defamation lawyer, and it’s not an area of law that I do a lot of [but] we have had some instances where clients have defamed people.”
According to Mark, there is a defined process within the Defamation Act as to how such disputes are raised and carried out.
“The first step is that the aggrieved person, which is the term, writes what’s called a Letter of Concern. And at that time the defamer, for want of a better word, has an opportunity to apologise. Apologise, withdraw. And that can minimise the damage,” he says.
“But importantly, if someone was to get a concerns letter, they would need to act upon it really quickly. Take down the offending post, and apologise profusely if things aren’t true, or things have been overstated.”
Who does defamation extend to?
Generally speaking, defamation only covers individuals, not companies, notes Mark.
“If the business is operated by an individual, there can be some exceptions. But to get online and complain bitterly about an experience you’ve had at a large shopping retailer, for example, wouldn’t be a defamation,” he says.
What is considered defamatory?
Ultimately, defamation is the public statement of something which is untrue or unsubstantiated.
“If a comment has the effect of damaging the reputation of an individual, in circumstances where it’s untrue and unsupportable, it can be defamation,” Mark says.
“There has to be a reputation that’s been damaged. If someone’s a public figure, if someone has some fame in the community, the presumption is that they have reputation which can be damaged.
“If you’re defaming someone who is well-known, then the damages are likely to be greater than if it’s simply an argument between neighbours. But arguments between neighbours can end up in court, and there can be awards of defamation made.”
In 2016, Scott Dougall at Carroll & O’Dea Lawyers provided My Business with a list of tips on what to do if your business is accused of defamation.
Hear more legal insights from Mark on a range of topics affecting SMEs on the My Business Podcast below: