Defamation law in the age of social media

Date published

28/02/2019

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Defamation, for those exposed to it, can be a terrible, destructive force. 

Its impact is felt by the scorching effect of ruined relationships and careers, by the mud that sticks long after vindication, by the chilling effect when sued and the self-censorship that follows, and by the time and money absorbed in stressful, open ended defamation litigation.

Consideration is now being given by a Working Party of the State and Territory Governments to review the Defamation Act 2005 and to recommend reforms and changes.  The architects of this Act contemplated the need for ongoing review and reform, with a review scheduled to take place after 5 years of the Act’s operation.  Unfortunately, that review was not completed in 2011 when certain deficiencies were apparent and could have been corrected.

However, while cognisant in 2005 of the fast moving technological changes of the Internet, there was little or no appreciation of the revolutionary impact social media would have on our communications even by 2011.  Facebook was launched in 2004, Twitter in 2006, Instagram in 2010.  The first judgment for social media defamation in Australia was not delivered until 2013.    

Social media has changed the world of publication forever.  Everyone on social media has become a publisher, with the risk of defamation that brings, and everyone has the power through social media to disseminate news, information and comment.  It has not simply ‘disrupted’ the traditional media model but has devastated it.

We are in the age of the citizen journalist, the eyewitness reporter, the Presidential decree by Twitter.

The features of social media, with anonymity and international publication to whomever and wherever it might be downloaded in the world, raise issues of intense complexity for the law and particularly the law of defamation.  Both the frenzy to judge and find guilt, and the willingness to bully, threaten and abuse, challenge the rule of law itself, let alone undermine the ideals of freedom of speech.

In order to make the Defamation Act fit for purpose for this time it requires game changing reform which may not be on the agenda of technical refinements to the Act that might be proposed by the States and Territories.

Take the first object of the Act, which is uniformity.  The various Acts legislated in each of the jurisdictions of Australia lack uniformity.  Individual jurisdictions have carved out for themselves exceptions to the model uniform law.  The obvious and compelling solution is that the law needs to be legislated by the Commonwealth Government.  It is a national responsibility and it is in the national interest, at a time of international debate about regulation of the Internet, that the Commonwealth Government cover the field constitutionally by legislating defamation law in relation to the Internet and social media, and achieve instant uniformity across Australia.

In this context, the primary issue is whether social media/digital platforms should be immune from action for defamation.  Only a few years ago, it might have been easy to accept that these bodies, like telephone carriers, have little or no control over the information published on their platforms.  With more knowledge of how the mechanisms work and the extent of data they collect, volunteered unwittingly by users, the reform of defamation legislation must confront the enormous power, control and oversight the Global Internet Companies wield and the threat that poses to freedom of speech, truth and privacy. 

The following important issues may then be resolved with the regulation of future communications in mind:

  1. Freedom of speech exercised without responsibility enables deliberately false and deceitful information to be disseminated. Should the presumption of falsity in favour of claimants remain and should damages be capped for defamatory conduct of this kind?
  2. Defamatory accusations are often published responsibly, but without sufficient evidence to prove truth. As the public are entitled to expect the truth to be published about a person’s reputation, in cases of responsible but deficient evidence, should the law allow an exceptional defence for the publication on a subject of public importance in the ‘interests of the public’?
  3. The public are also entitled to expect that private information about a person is not published or used to that person’s disadvantage. Should the law provide a meaningful restraint particularly on the information so easily distributed by social media?
  4. Apologies and corrections are already part and parcel of the dispute resolution mechanisms in the Act, yet much of the antagonism in disputes is the monetary value of the defamation. Should there be a speedy non-monetary remedy that can be established, particularly for trivial cases, thereby displacing damages as the remedy up to a minimum threshold?
  5. It is a long established rule that the meaning of the publication is to be understood based on the ordinary reasonable person’s general impression, not by applying a lawyer’s interpretation, which is logical, precise and analytical. It comes as a surprise to litigants when this rule is turned on its head by the skilfully crafted ‘imputations’ in the pleadings asserting the meaning.  Pleading ‘imputations’ must be logical, precise and analytical.  They are a lawyer’s construct of language, not the general impression readers receive.  Should this process be changed to make defamation law as simple and affordable as possible?

This article was first published as an opinion piece in The Australian newspaper on 23 February 2019.