Could innocent blog comments amount to defamation?

Businesses using social media need to closely monitor what they, and their employees, are saying about others to ensure you aren’t in the firing line of our defamation laws.

In this article, we provide an outline of what constitutes defamation in Australia, and what you need to be careful of.

Under Australian state laws, you (or your company) may be in the firing line of a defamation action if you have written material that has harmed the reputation of a person, a small business (of less than 10 people), or a not for profit organisation.

It is not just the original authors who are at risk of a defamation action, the net stretches as wide as anyone else who publishes or re-publishes the material. So just because “someone else said it” doesn’t mean you won’t be caught up in the cross fire if you have published or re-published it.

To make out an action of defamation, the “defamed” must show that:

(a) Material has been published, or communicated to someone other than the “defamed” person. Clearly anything published on the internet ticks this box.

(b) The “defamed” person was identified in that published material. Identification may not necessarily be by name, it can be enough that you have included characteristics that enable a person to be identified. And take note, where a group of people have been defamed, each member may be a possible plaintiff!

(c) The published material was defamatory (defined as material that exposes a person to ridicule, lowers their reputation in the eyes of the community, causes people to avoid them or injures their professional reputation). Sounds quite subjective and hard to predict doesn’t it?!

Some examples of things that could be found to be defamatory, include saying that someone is:

- Corrupt, dishonest or disloyal

- Suspected of committing, or alleged to have committed an illegal act

- Suffering from a contagious disease, or insanity

There are a few possible defences if you are in the firing line of a defamation allegation. If you can prove that the statement is substantially true, then you have found yourself a get out of jail free card. Remember though, you have to have enough proof to be able to establish this… sometimes not as easy as it sounds.

Other defences include absolute privilege (for example in parliament – probably not relevant to most of us!), qualified privilege (for things like publication of public documents), honest opinion where the published materials are a comment (rather than a statement of fact) that is a matter of public interest, triviality and consent – among others.

Of course, often the mere threat that someone may have taken our comments as defamatory will be enough to have us deleting the material immediately – but in today’s cut and paste, tweet, and re-tweet kind of interaction with the internet, finding all traces of our comments and deleting them from the depths of google is easier said than done.

Recent comment on Craig Thompson’s defamation action against the media suggests that defamation litigation can have the effect of silencing the media even in instances where it may be in the best public interests for it not to be silenced. A sobering thought for those of us who may not have the deep pockets of a large media company to defend ourselves in the courts.

So while we may feel justified in what we say, if we are putting our comments anywhere on the internet, we should perhaps be taking a step back, and ensuring we aren’t putting ourselves in the firing line.

If you want more information, check out the Defamation Act 2005 (NSW) if you are in NSW, or your relevant state legislation if you are in another state or territory.

Or contact us at Aspect Legal for tailored information relating to your situation – 02 8666 7900 or info@aspectlegal.com.au