A Guide to Social Media & Defamation

Social Media & Defamation

Have you had distasteful or offensive things posted about you on Facebook, Twitter or Instagram which have impacted your reputation or the reputation of your business? Or have you posted such comments about others?

Defamation laws extend to online publications and an increasing number of people and businesses are facing significant financial consequences for posting defamatory material online.

What is Defamation?

Defamation law protects people from false or damaging statements being made about them which can negatively impact their personal or professional reputation.

Defamation law aims to balance permitting the free distribution of ideas, opinion and information and protecting the reputation of individuals and businesses.

Making a defamation claim involves suing a person or business for loss of reputation caused by something that person or business has published or distributed.

To claim compensation for reputational damage, you must be able to prove four things:

  1. The defamatory material was ‘published’ (e.g. through spoken or written words, gestures, images or internet material).
  2. The information contained in the publication is not backed up by facts
  3. The publication identifies you or your business
  4. The publication has caused harm to your reputation

Note, there are a number of defences to defamation, including that the statement was true, or that it was an expression of an honest opinion

Defamation & Social Media

Defamation laws extend to online platforms. Social media is no different to other forms of publishing. The fact that social media allows messages to be broadcasted to a larger audience only adds risk.

When publishing information online, you will be just as liable as, for example, the editor of a newspaper if you defame someone.  Although defamation cases involving social media are relatively new, the same principles outlined above apply. 

Social Media Admins

As the administrator of a social media webpage, you may still be liable for posts uploaded onto your webpage by third parties. If you are notified of the offending content and fail to remove it you may be found liable as if you had published the information yourself.

This means that if your friend posts an offensive or defamatory comment on your Facebook post and another friend (or any other person) makes you aware of the comment and you fail to remove it, you may be considered a publisher for the purposes of a defamation action.

How can I protect myself?

To prevent a defamation issue arising in the first place, try to avoid making defamatory statements. This includes distributing information which may be offensive or damaging to someone’s reputation. This can include “sharing” a defamatory post which you did not create.

If you are accused of social media defamation, the best thing you can do is to immediately remove the offending post and apologise to the person affected.

I think I have been defamed. What should I do?

It is very possible for defamatory material posted online to result in significant reputational and financial loss. For a court to award you money in respect of your defamation claim, you usually must establish ‘damage’ or ‘loss’. If you are running a business, this ‘damage’ may be demonstrated as a loss of business profits or customers (assuming this loss can be clearly linked to the defamatory material).

In some limited circumstances, where a statement is so inherently injurious, you may not need to demonstrate actual ‘damage’. This can include being accused of a crime, assertions of professional incompetency or certain sexual conduct.

Not every false or unkind statement posted about you or your business online will be actionable. Nonetheless, it is always a good idea to keep a record of the potentially defamatory material. This may include taking a screenshot of the relevant social media post. If the post is later removed, this may be detrimental to the success of your defamation claim. 

Further, if you believe you have been defamed and suffered loss, you must act quickly. There are strict time limitations for making a defamation claim. You must lodge a defamation claim within one year of the date of publication of the defamatory material. Only in very limited circumstances will this timeframe be extended.

At Gordon Legal our lawyers are experienced in the area of defamation law. If you think you may want to investigate your claim further, or have any questions about a making a defamation claim, please contact us at our Melbourne office on (03) 9603 3000.