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Defamation law and social media

The recent case of Mickle v Farley held that defamation laws apply to social media activity. The case concerned defamation on twitter and it is believed to be Australia’s first defamation case involving social media publications. Judge Elkaim considered the ability of social media content to spread rapidly, such that enormous audiences could view it. His Honour noted that the publication of such content has the capacity to inflict sever reputational damage. In the result the defendant, a former student, was ordered to pay over $100,000 in damages over a series of defamatory posts made against a teacher.

What is defamation?

Defamation occurs when a comment or publication that contains defamatory material is communicated to a third party. The comment or publication must identify the plaintiff and it must contain defamatory imputations. In order to successfully prosecute a claim, the defendant must not be able to rely on a defence that is available to them, for example the defence of truth or honestly held opinion.

The case illustrates that all these requirements of a defamation suit can be satisfied in the online arena. Social media is an effective platform for broadcast and it is an ever-expanding platform. As such, users of the platform are increasingly exposed to potential defamation liabilities to an unprecedented extent. Indeed, an absent-minded decision to “share” content on social media has the ability to expose a user to considerable monetary liabilities. In effect, all users of social media are in the position of an editor of print media, such as a newspaper, and should exercise corresponding caution. As noted, liability can arise not only through generating content, but also through “sharing” or “retweeting” it. Similarly, the defamatory content may be any form of publication, be it text, photograph, video and so on.

What you can do if accused of defamation

The key message is to exercise caution, especially online. If you are accused of defamation the most useful first step is to remove the offending content and offer an apology. Of course, if matters progress it is essential that you seek legal advice. Conversely, if you wish to pursue a defamation claim you should first consider seeking removal of the content. However, it may be that the reputational damage is done and you wish to pursue a defamation claim. In this circumstance, you should immediately seek legal advice as such proceedings are subject to complex requirements, as well as strict time limits. As with all legal actions, however, it is important to remember that litigation can be expensive and an out-of-court solution should be preferred where possible. If you are in doubt, you should seek advice from a lawyer, and Turner Freeman can assist you in this regard.

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