Technology has changed the way people communicate and distribute thoughts and ideas. It’s becoming increasingly easy to spread information, regardless of the accuracy.
Defamation laws therefore can extend to online publications, such as posts, comments and reviews on social media sites such as Facebook. If you have had offensive or vilifying statements made about you that have ruined your reputation or the reputation of your business, you may be able to take legal action to get them taken down and receive compensation.
You can do this by trying to hold either the person making the comment, or the company that has provided the forum (ie Facebook, Google reviews etc) liable. However, note that the High Court in the recent case of Google LLC v Defteros  HCA 27 clarified that a search engine (ie Google) will not be liable for content simply for the fact that it offers a hyperlink to the content.
According to common law, there are three elements that must be established in a defamation action:
- That the content has been published to an audience
- That the matter carries a defamatory meaning – making statements that are untrue and that lower your standing in the estimation of ordinary reasonable people
- It has caused you loss such as loss of reputation or business
The relevant legislation governing this area of law in NSW is the Defamation Act 2005 (NSW), which clarifies and provides further elements, including serious harm and the issuing of a concerns notice.
The serious harm element is defined under s 10A to be satisfied where the publication has caused or is likely to cause serious harm to the reputation of the person. Relevant considerations for whether harm is likely to be considered ‘serious’ includes:
- Evidence of what actually happened after the publication of the material
- How wide and interested the audience of the publication are
- Who the audience are and whether they are those whose opinions matter to the plaintiff
Before defamation proceedings can be commenced, a concerns notice needs to be provided to the proposed defendant. According to S 12A, the concerns notice is required to:
- Be in writing
- Specify the location where the text can be accessed
- Inform the publisher of the alleged defamatory imputations
- Inform the publisher of harm that is considered serious harm to person’s reputation caused or likely to be caused by publication
The other preliminary requirement before a person can commence proceedings is that the applicable period for an offer to make amends has lapsed. The applicable period is usually 14 or 28 days depending on the situation, as set out in s 14.
It is also important to note that, while you can bring defamation actions on behalf of a company, it must either have less than 10 employees or be not-for-profit, as according to s 9(1)-(2). A further limitation is that the serious harm element is not satisfied unless the publication has caused or is likely to cause the company serious financial loss.
If the above requirements have been met, then a person may commence defamation proceedings. However, it is crucial to address any possible defences that would invalidate the defamation claims. Some of the most common defences are explained below:
- Defence of justification which applies if the defendant can prove that the defamatory imputations are substantially true.
- Defence of contextual truth which applies if the defendant can prove that the matter carried one or more imputations that are substantially true and any other imputations do not further harm the plaintiff’s reputation.
- Defence of absolute privilege which applies to matters published in the course of court proceedings or the proceedings of a parliamentary body.
Also note that you have one year from the date of publication of the defamatory content to commence proceedings, as per s 14B of the Limitation Act 1969 (NSW).
We have template letters and guides which provide an example to follow and tips on forming defamatory imputations. They are specifically suited for defamation on social media.
If you have any questions or require any further assistance, please feel free to contact us.