Defamation on Social Media in Australia

Author: Ian Aldridge, Progressive Legal

Social media can be a powerful tool for businesses to reach out to their target market. Unfortunately, social media can also be a savage vehicle for defamation. It can become a concern for business owners who use social media to promote their businesses.  

There are a lot of “keyboard warriors” out there that don’t believe they are liable for their actions online.  

If you suspect that you or your business has been defamed or that your actions towards another may amount to defamation on social media, this article is for you. In this article, we’ll discuss what defamation is, how to identify it online, and some steps you can take to protect you and your business in Australia.

What is defamation on social media?

Defamation is the act of making false and malicious statements about a person or a business that may damage their reputation. 

Defamatory material can be photographs, news articles, published comments or even spoken words without a written record.

Social media defamation describes defamation that has been published onto the internet. The publication of defamatory material can occur on any internet platform, including: 

• Social media, such as Facebook, Instagram, Twitter, LinkedIn, TikTok etc.; 
• Google reviews or Facebook recommendations;
• Chat rooms and message boards (i.e. Discord); 
• Public media websites (i.e. local or regional newspaper articles or letters to the editor); 
• Blogs via blog comments (via social media). 

When can small businesses claim defamation?

We all know that individuals can make a claim for defamation. But more recently, Australian small businesses can make a claim for defamation in certain situations. If the following applies to your small business, you may be eligible at law to make a claim: 

• Your business was formed to obtain a financial gain; 
• Your business has fewer than 10 employees and is not an associated entity of another corporation; and  
• Your business is not a public body (e.g. local government, government authority formed by law).

How do I prove defamation on social media?

If you or your business are a victim of defamation, you may be legally able to commence proceedings against the person who made the defamatory statement. However, in order for a statement to be considered defamatory the party claiming defamation must establish each of the following 4 elements of defamation: 

1. False statement of fact

You must show that the other party made a false statement about you.

2. Publication

You must show that the statement was published to a third party (e.g. your social media followers). 

3. Identification

You must show that the false statement identifies you or the entity that is being defamed (whether you are expressly identified or suggestively identified).

4. Damages

Lastly, you must show that the false statement has caused you damage (e.g. financial loss, emotional distress, or damage to reputation). 

Fairfax Media Pty LTD vs Voller 2021 rejected the argument that media platforms are not responsible for the comments published by third parties on their websites.

Defamation or harassment?

Social media defamation claims are usually handled as civil matters, rather than criminal matters. This means that the penalties for committing social media defamation are typically less severe than the penalties for other forms of defamation, such as libel or slander.

However, in some cases, social media defamation may also be considered a criminal offense, such as when the statements made are extreme and are threatening and/or harassing in nature. 

What are the defences to defamation on social media?

In Australia, there are a few possible defences to a defamation claim. Below are 3 of the most commonly used defences. 

Contextual truth

Contextual truth is a defence that can be raised in a defamation case. This defence allows for certain statements to be considered true if they are taken in context. For example, a statement that is made as part of a larger conversation is more likely to be considered true than a statement that is published on its own.  

Honest opinion

Another defence is honest opinion, which allows for a degree of flexibility in what is considered to be defamatory. The defendant must show that their statements were based on an honest belief and that they had a reasonable basis for this belief. However, note that the defence of honest opinion isn’t as easy as saying “I think” or “I believe’’ as a comment can still be factually correct or incorrect. 

Innocent dissemination

Finally, it’s also possible to raise the defence of innocent dissemination. This applies in cases where the defamatory material was published without the knowledge of its defamatory nature. If this defence is successful, the defendant may not be liable for damages. 

What the remedies to social media defamation?

Social media defamation is often difficult to prove, because it can be difficult to show that the person or entity defamed actually suffered damages as a result of the statement. However, if the person or entity can show that the statement was false and that it caused them to suffer economic damages, such as lost customers or earnings, then they may be successful in their defamation claim. 

If you find yourself the victim of social media defamation such as on social media, there are a few options available to you. Firstly, you can try to contact the person who made the defamatory statement and request that they take it down. If they refuse, you should contact an experienced defamation lawyer as you may have grounds to send a ‘cease and desist’ letter demanding that they stop making defamatory statements. If they continue, you may need to take further legal action. 

Dispute resolution proceedings can be an expensive and time-consuming process, but it may be necessary in order to clear your name. Additionally, some websites may have policies in place for dealing with online defamation. For example, Facebook has a process for reporting defamatory content and may remove it if it violates their terms of service.  

Unfortunately, there are some people out there that won’t stop what they are doing unless they are told by a Law Firm or a Court.  

Who is responsible for defamatory posts?

Social media defamation can come in various forms. It can occur even if the person or entity being defamed is not directly mentioned by name. For example, if you make a false and damaging statement about a company on social media, that company could still sue you for defamation. 

Note that as the administrator of a social media webpage or group, you can be held liable for any defamatory content that is posted by third parties. This includes comments, photos, and videos. If someone posts something on your page that is defamatory towards another, you may be held responsible unless you can prove that you did not know about the content or that you took reasonable steps to remove it.

In addition, if you allow third parties to post directly to your page, you may also be held liable for their actions. Therefore, it is important to be aware of the potential risks involved in operating a social media page or group.

What should I do if I am accused of defamation on social media?

First of all, stop any contact with the other party. Take screenshots of any publications relating to the issue to preserve the evidence.  

Then, contact a specialist defamation lawyer to assist you in the case. Defamation can be costly if the dispute isn’t resolved promptly!

Key Takeaways

Social media defamation is a serious issue that can have far-reaching consequences.  

By understanding the different types of online defamation and how to respond, you can protect your business’s reputation online.  

If you think you may have been a victim of social media defamation, request our advice below and we will get in touch with you right away. Our team of experts are here to help so that your business doesn’t suffer from this type of attack. You can also call us on 1800 820 083 if you prefer to discuss your matter over the phone.