Defamation issues

3 Feb

Written By For Good Digital

‘Defamation’ involves damaging the reputation of a person by publishing or communicating statements about that person that would potentially cause a third party to think less of that person. For more information about defamation, see Chapter 11.2: Defamation and your rights.
Anything that is communicated in a public forum (e.g. a speech, newspaper article or website) has the potential to be defamatory. However, a publication does not need to be ‘public’ to be defamatory. An email sent to a restricted group of people (or even sent to a single person) can be defamatory as much as a social media post that is publicly available (e.g. a post on Facebook, X, formerly known as Twitter, or LinkedIn).
In Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56, the High Court confirmed that the same laws govern defamation on the internet as govern defamation in other types of publications. In this case, the court also ruled that ‘publication’ (one of the elements that a plaintiff must prove in a defamation action) occurs when material is downloaded, read and comprehended by a reader. This case has been confirmed in subsequent decisions. If defamatory content is published on the internet, that content is presumed to have been published in Victoria if it can be accessed by any person using the internet within Victoria. The allegedly defamed person may bring proceedings in a Victorian court, even though the publication appears on a foreign website.
Care must be taken when maintaining a social media page on which members of the public can leave comments. In Fairfax Media Publications Pty Ltd v Voller (2021) 273 CLR 346; [2021] HCA 27, the High Court held that media companies were responsible for defamatory comments posted on Facebook pages which they controlled. Members of the public were free to make comments on posts appearing on the said Facebook pages. The media companies which controlled the said Facebook pages were responsible for defamatory content, even though that defamatory content had been posted by third-party users.
Unintentional imputations (the meaning conveyed by the material) may arise from words or images on a website that are linked to words or images on a different site, or a different part of the same site. Words or images might be independently innocent, but when linked may give rise to a defamatory meaning.
In certain cases, the publisher of one site may be responsible for the replication of defamatory material appearing on a linked site. Also, the risk of defamation can increase when an article is summarised and published as a post to a social media website. This is because when a shortened version is published, the context (and thereby the defences to the defamatory content) can be lost.
Uniform defamation Acts that came into effect in January 2006 include a defence of ‘innocent dissemination’ for subordinate distributors. This means that defamation actions can be defended, provided the ICH and ISP:
- were not the first or primary distributor;
- were not the author/originator of the matter; and
- did not have any capacity to exercise editorial control over the content before it was published.
For more information about the uniform defamation Acts, see ‘What is defamation?’ in Chapter 11.2: Defamation and your rights.