The unsociable side of social media

By Norrie Ross

The case Hockey v Fairfax Media Publications Pty Ltd highlighted the risks around defamation. Now debate is growing as to whether defamation legislation needs to be updated, or if it can keep up with the rapid evolution of social media.

In the digital age, everything we say has a permanency and reach not previously envisaged, with consequences evolving case by case. One such consequence is an increasing number of victims of social media trolling seeking retribution through traditional defamation law and winning large payouts.

Professor Andrew Kenyon, joint director of MLS's Centre for Media and Communications Law, says many people are under the mistaken impression that normal defamation rules do not apply to social media.

"What you say on social media is going to be treated basically the same as what is published in a newspaper," Professor Kenyon says.

"You publish something that meets the defamatory test, harm to reputation is presumed, and damages are at large."

The number of social media defamation cases is growing world-wide.

Recently a NSW music teacher was awarded $105,000 damages against a former student of her school who posted a series of defamatory comments about her on Twitter.

Writer Marieke Hardy settled a defamation case brought by a man she wrongly claimed was the author of a hate blog against her, and a WA woman was ordered to pay $12,500 to her ex-husband after posting comments about him on Facebook.

Professor Kenyon believes the law needs to evolve to reflect the digital revolution and emerging ways of communicating.

"The law was created without social media in mind. There is a lot of public communication that I do not think should necessarily be dealt with under traditional defamation law."

Professor Kenyon says a change should be made to the traditional legal presumption that if material is defamatory your reputation has been harmed.

"In the past it was convenient and it probably matched reality. If you called a person a crook or incompetent in their profession on the front page of a newspaper people would think less of them.

"I don't think the fact that somebody says it on Twitter in itself should mean you should automatically have the presumption.

"If you are a non-journalist, just someone in the street, is it appropriate that the law just treats that the same as it treats publications by the mainstream media?

"I'm not sure that makes sense. I don't know that a person's reputation is actually harmed in the same way any more."

Professor Kenyon said in England there is now a threshold that to be defamatory and actionable there has to be "substantial harm" to reputation.

MLS alumnus John-Paul Cashen, a principal at M+K Lawyers, is an expert media and defamation lawyer and he says the immediacy of Facebook and Twitter is the biggest trap.

"You get people who write things when they are emotional or reacting to something. They are not thinking," Mr Cashen says. "They are firing something off from their phone on the train or in the street. It can be anyone from journalists to mums and dads."

Mr Cashen, whose clients include the Herald Sun, Channels Nine and Seven, 3AW and The Australian, says another trap is that people think they can remain anonymous.

Increasingly his firm employs forensic IT experts to track down the source of defamatory material.

If people are really sophisticated they will have accounts offshore, they use VPNs, they encrypt all sorts of things. But typically if the client has the money to spend you can track them down.

"Most of these people aren't Julian Assange. They are mums and dads on their home computer. They just give away little bits of information that make them slip up."

Another growth area for defamation lawyers is restaurants and other small businesses suing people who post nasty or negative reviews on social media.

"Small businesses can be very sensitive if they think something is defamatory, but sometimes it's just critical and they don't like it and they want it shut down," Mr Cashen says.

Professor Kenyon tells his students that his best advice is to be careful what they post on social media."In the heat of the moment you say things just as people would have said once sitting round the dinner table. It's just that now it's relatively permanent and traceable online in a way it did not used to be."

Credit: AFP/Stringer (Getty Image)


This article originally appeared in MLS News, Issue 14, October 2015.