Social media defamation on the rise?

SocialMediaIf you are a regular reader of The Vue Post, you will be aware of my strong interest in the legal issues surrounding social media and its use as a business tool, and The Vue Post’s fascination with its social aspects.

Judging by the public interest in the spills and thrills of Joe Hockey’s battle with Fairfax Media, we are not alone in that fascination. Although, that fight should have reduced the appetite of the public for engaging in social media defamation cases, by highlighting the possible costs dangers of such high-stakes litigation. After all, Joe Hockey may have walked away with a damages award, but his legal costs, most of which he was unable to recover, dwarfed the money he received.

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With social media and defamation in the spotlight of late, Slater and Gordon issued a media release yesterday noting that ‘[a]lmost half (48 per cent)* of defamation enquiries received by Slater and Gordon in the last financial year were about material posted on social media. Most of those enquires (43 per cent) related to Facebook posts.’

The top four social media defamation enquiries at Slater and Gordon are:

• Facebook
• Twitter
• Instagram
• General internet

Slater and Gordon didn’t reveal the actual numbers involved, so we could be talking about half of 2, or 200 inquiries.

The Australian Financial Review reported that the ‘number of NSW District Court actions concerning social media doubled from 31 in 2013 to 61 in 2014,’ and the Supreme Court of Victoria heard 39 defamation cases in 2014, only four of which related to website publications such as blogs, and two concerned Facebook posts. Although an earlier report referenced in respect of the NSW data indicates those District Court numbers relate to all defamation proceedings commenced in the court. The same report also shows defamation filings in the Supreme Court had dropped from 67 in 2013 to 58 in 2014.

Given the ubiquity of social media and the millions of social media posts by millions of users on a daily basis, one could argue those numbers are practically negligible.

It would appear the courts are far from ‘struggling’ with a flood of social media defamation cases and, while some legislative changes may eventually be warranted by this new medium, existing laws have been applied by the courts to manage disputes arising from its use with minimal fuss.

I reported on a number of social media defamation cases to date, including:

  • the poker player defamed as a thief by ‘friends’ on Facebook, who was awarded $340,000 in damages;
  • the three chief executive officers of a children’s home who were accused of abuse and neglect on Facebook, and received a combined $250,000 for their troubles;
  • the NSW teacher who was defamed by the son of a retiring colleague on Facebook and Twitter, and received $105,000 in compensation;
  • the swimwear company which was accused on Facebook by a designer of copying her designs, which was awarded $20,000; and
  • a $200,000 damages award against Google over automated results during Google searches that associated the name of a man with high-profile criminal figures.

It’s worth noting that following the case involving Google many anticipated a rush of defamation cases against the company. However, that prediction failed to materialise. Admittedly, Google has also taken steps to enable people to easily give notice of material which is objectionable, including defamatory.

Since then a few more cases have been spotlighted by the media, including:

  • a case out of Western Australia, the first social media defamation case in that state, in which an estranged wife was ordered by the District Court to pay her ex-husband $12,500 over defamatory domestic abuse and violence allegations made on Facebook, in Dabrowski v Greeuw [2014] WADC 175 (22 December 2014);
  • the NSW couple who was sued in the District Court over comments made on Facebook about a neighbour’s dog and, although the matter had eventually settled, were left with $14,721 in legal costs; and
  • a legal action currently on foot by the principal of an elite school in Victoria against a former staff member, to unmask a Twitter user accused of calling him a bully.

‘Inquiries’ about social media defamation to a law firm, and a dozen or so cases over a few years before the courts worthy of media coverage are not a great cause for concern, and don’t necessarily lead to a forecast of a flood of new cases.

I noted before there is an argument for a timely review of defamation laws in Australia, especially in light of the recent Hockey and Fairfax battle, but there is certainly no law reform emergency.

Postscript: see ‘I may have got it a little wrong on defamation?’ in my July 2017 Social Media Round-up.

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