With the advent of Facebook, Twitter, Instagram and the myriad of other social media options the issue of defamation of character is on the rise in New South Wales Australia. And while there are laws on the books to deal with the legalities of defamation, the laws are outdated when it comes to the use of social media.

Originally defamation laws were put into place to handle traditional media publications. These publications included television reporting, magazines and newspapers. The rules were codified as follows;

Defamation of character required three basic factors:

  1. The statement must be Published
  2. The statement must Identify one or more persons
  3. And there must be Damage to the reputation of another

Damage to the reputation of another includes the following criteria:     

  • Harms the reputation of the person in the eyes of a reasonable and ordinary person or peer in the community
  • Leads others to ridicule another or creates hostility toward the person
  • Damages the person’s reputation either personally or publically

Pursuant to these criteria, if defamation of character was found, the offensive material could be removed or retracted and never seen or heard of again. However, with the use of social media no post or comment is ever truly gone. Instead, the offensive statements remain embedded in computer software, applications and the cloud that contains all that is ever typed and posted online.

With the number of social media defamation cases on the rise the NSW courts must begin to revamp the current legislation. New laws must be proposed for the definition, consequences and handling of social media defamation cases. Some of the ideas being proffered include;

  • Creating a panel of judges who review cases in a more expedient manner
  • Jurisdiction for a panel to make an immediate determination of either abuse or defamation based simply upon the contents of the posted material
  • An Order directing immediate removal of the offensive material from the online host

The ongoing issues become;

  1. The proper party for the defamed to sue
      1. The person who published the statement(s)
      2. The platform upon which the statement(s) or pictures were posted
  2. The expediency in which the platforms change
  3. The speed at which the information is disseminated reducing the likelihood that the damage to someone’s reputation can be successfully contained
  4. The proper amount of damages considering the scope of publication
  5. The statute of limitations for filing a claim

And while it may seem as if the majority of the claims focus on individual reputations, this is not necessarily so. With the use of Yelp, and other online commentary, the opportunity to express a negative opinion about a business or a corporation, is also growing. A disgruntled consumer of a small business product, or service, can do an immense amount of damage to a business with the simple click of a button. In these instances, the damage can be immediate and widespread. The current speed of the legal system cannot adequately remedy these harmful situations.

Two prominent figures have taken an urgent interest in the remedy of the issue of social media defamation. Judge Judith Gibson of the New South Wales District Court has recently commented on the gravity of this issue. Judge Gibson reports an overwhelming number of defamation cases coming into the courts based upon social media defamation. Her concerns with these cases include;

  • The length of time it takes for these cases to reach a courtroom
  • The overwhelming number of cases on the docket
  • The lack of relevant and current data on how to combat the problem of technology and defamation

The issue is also being tackled by New South Wales Attorney General Mark Spearman. Mr. Spearman has committed his offices to a thorough review of the current defamation laws and the system by which they are being processed. The attorney general’s office will begin by studying the following issues;

  • The speed with which the issues are addressed
  • The impact of the ever changing technology
  • The form of the disputes including social media, text messages, websites, and emails
  • The demographic of those affected; the issue is no longer confined to celebrities and public figures

In the meantime, courts and citizens of New South Wales Australia will have to work within the current legal system. There are some steps that can be taken by all involved to reduce the damages that are occurring as a result of social media.

  1. Carefully think about the information being disseminated about a business or person before posting it online.
  2. Personally request offending material be removed before filing a lawsuit
  3. Follow the guidance of those legal professions regarding the assessment of your case
  4. Prepare evidentiary documents in a manner that will allow for an expedient review by the courts
  5. Comply with all instructions and orders from the court once a decision has been rendered

The careful consideration of materials being posted online by all internet users can begin to reduce the number of defamation cases rising in New South Wales Australia. However, in the event that you find yourself in need of assistance with this, or any other legal issue, please contact Owen Hodge Lawyers. At Owen Hodge, we are always happy to assist clients in understanding the full ramifications of any and all of your legal needs. Please feel free to call us at your earliest convenience to schedule a consultation at 1800 770 780.