With the advent of social media, traditional defamation principles are constantly being adapted in the Courts to meet the demands in our new online world. Special Counsel Catherine Ballantyne outlines what you need to know.
With the advent of social media, people are suddenly finding themselves in the position of being potential publishers of defamatory material, or regrettably on the receiving end of disparaging remarks.
Defamation occurs when a negative statement is made against someone's character. Each case turns on the facts as to whether a Court would determine the statement to be defamatory.
Below are six things you need to know about defamation:
- Large companies cannot bring an action for defamation
The only parties who can commence a defamation action are:
- A natural person – proceedings cannot be brought by or continued on behalf of a deceased estate.
- A not-for-profit corporation.
- A small corporation with less than 10 employees.
- You do not need to name the person for the statement to be defamatory
A person does not need to be specifically named in a publication for the statement to be defamatory. The person needs to be reasonably identifiable by the description in the material e.g. the Prime Minister or an owner of the local McDonalds etc.
It may also be defamatory if you refer to a class of people. E.g. "All the shop assistants at shop ABC are..."
- A comment on an online article can be defamatory
If you make defamatory statements in a comment on another article, it can still be considered defamation, unless it falls within the defence of "fair comment".
A defence of fair comment is established when:
- the publication is a comment as opposed to a statement of fact;
- the comment is based on facts which are substantially true;
- the comment relates to a matter of public interest; and
- the comment is the honest expression of the commentator's real view.
- Sharing an article that is defamatory can get you into trouble
If you share an article that has defamatory statements, you can potentially be considered a secondary publisher and may be liable for the defamatory statements.
- Truth is a defence
Truth is an absolute defence to defamation.
For example if someone publishes online that a sportsperson takes illicit drugs. If that sportsperson has taken illicit drugs even once, depending on the wording of the article, the truth defence may apply.
- Search engines, Facebook and Twitter can be liable
Any search engines, Facebook or Twitter can be liable for the defamatory material once they are put on notice that it is defamatory. If a search engine has a hyperlink to the article or includes "snippets" of the article which include one or more of the defamatory statements, they may be liable.
If you have been defamed, you should put all parties on notice of the defamatory material as soon as possible after the matter is published.
Traditional defamation principles are constantly being adapted in the Courts to meet the demands in our new online world. Especially in cases where material goes "viral", the person who originally published the material is often not the only person who finds themselves as a defendant in Court proceedings.
If you believe you have been defamed on the internet or social media you should seek legal advice on the merits of your claim as soon as possible after the material is published.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Madgwicks is a member of Meritas, one of the world's largest law firm alliances.