Social Media and Defamation

Tweeters and Posters Beware!

Anyone who uses social media has almost certainly come across a post or tweet where your immediate reaction was to suck in your breath and go “Ouch” while simultaneously being glad you weren’t the one on the end of the tirade.

Perhaps you have been guilty of firing off such a post or tweet yourself when someone or something has upset you. Maybe about the tradie who didn’t show up on time or the restaurant you went to last night where the waiter was the worst you have ever encountered.

It’s your democratic right to sound off and practically your duty to let everyone know to avoid spending their hard-earned cash in that place, isn’t it? Maybe it is, but you really need to be careful that by posting or tweeting you aren’t defaming someone because if you are, that spur of the moment rant could cost you plenty.

Of course, social media isn’t the only place where people may be defamed, but it is fast becoming a growing area for these sorts of claims and disputes to arise.

What do we mean by defamation?

You may have defamed someone (and be held liable for damages) if you have made a statement that could be seen as lowering a person’s reputation in the eyes of community, could lead to that person being made fun of, avoided or despised, or could in some way lead to a loss of reputation in the person’s profession, business or trade.

Could this cost me money?

While the simple act of defaming someone may not automatically lead to a court finding you liable to pay damages (money) – and there may be defences available to you – just being accused of defamation can lead to becoming involved in costly and time-consuming legal proceedings.

While you may have a defence such as being able to prove the statement was true or that it was an honest opinion on a matter of public rather than private interest, the best strategy is not to make statements that could lead to a complaint in the first place.

But I was only posting on my private Facebook page….

Defamation can include publishing an article or newsletter, posting on a website or even writing an email. With the use of social media and email being so widespread, comments and posts people make have the potential to “go viral” almost immediately. What may have started off as perhaps a private chat between two people can quickly spread to a far wider audience than was ever intended, sometimes with far reaching consequences.

Who can be defamed and who is liable?

While you can’t defame a dead person and legislation may, depending on where you live, exclude or limit a company from suing for defamation, it is important to remember that each person who participates in the defamation may be found liable for it. So, if you receive an email that is defamatory about the local plumber who failed to turn up or the crazy parent from your child’s school and decide to spread the word to all, you could find yourself in as much hot water as the person who wrote the email in the first place.

A cautionary tale

Take the case of Mr Palmer who decided that he needed to warn his fellow residents about Mr Mohareb, one of his neighbours on Scotland Island (a small coastal community near Sydney).

Mr Palmer posted on the Scotland Island Community Facebook page a “Warning” about Mr Mohareb that included describing him as a “highly volatile individual, prone to manic outbursts” and stated that he was “often abusive and threatening – particularly towards women and children and warned residents to avoid approaching or confronting him”.

Not surprisingly, Mr Mohareb took offence at these comments and subsequently, the matter proceeded to litigation in the District Court of New South Wales with significant costs being incurred by both parties.

How can I avoid being sued for defamation?

A good rule of thumb is to think long and hard before your post or publish. Remember once you post or press send it is out there on the internet forever.

Some other techniques to avoid defaming someone include:

• Follow the golden rule of “If you can’t say something nice don’t say anything at all”.
• Always check that any statements you make are actually true. Don’t just repeat what someone else told you without checking that what they said is actually true.
• When communicating, focus on the issue and try not to make personal comments or sweeping statements.
• Never make derogatory comments about a person’s race or religion.
• Try to avoid emotive language.
• Avoid identifying someone even unintentionally if what you are saying could lower the person’s reputation.
• If in any doubt don’t say, write, tweet or post before checking with a lawyer first.

Help! I think I may have already defamed someone

An apology, especially a public apology, can often go a long way to limiting the damage done. If you are in any way concerned that you may have defamed someone or have been accused of doing so, then it is better to seek legal advice sooner rather than later.

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