Social Media and Defamation

Social media platforms like Facebook and X (formerly Twitter) have revolutionised communication, enabling people to immediately share experiences, news, and opinions with a global audience. While social media platforms are powerful tools of communication, these tools should not be used to spread unverified and harmful information. In Australia, defamation law protects individuals and businesses from false and damaging statements on social media. This article explains the legal framework governing defamation in Australia, and the implications to postings on social media, with reference to a recent notable case.

Freedom of speech

Anyone who has been exposed to popular culture from the United States is likely to be familiar with the much-vaunted concept of ‘Freedom of Speech’, a protected right to unrestricted expression that is often celebrated as a fundamental liberty of modern democracy. It is important to understand that there is no such concept in Australia. Broadly speaking, Australians do not have the right to say anything that they like without consequences. While the High Court has held that an integral part of the representative system of government is an implied freedom of political communication, this only means that the government cannot unjustifiably impede political discourse. It is also not an absolute right and is subject to national security and public order laws, as well as prohibitions against incitement to violence, hate speech and defamation.

Defamation

Defamation is the act of making a false and unproven statement that is intended to damage the reputation of an individual or business. Defamation occurs when someone publishes a statement that harms another person’s reputation by exposing them to contempt, ridicule or hatred. Defamation laws are similar across Australia, as the states and territories agreed to introduce the (substantially) uniform Defamation Act 2005. However, courts in the different jurisdictions may interpret the laws slightly differently, so some jurisdictions may be seen as more “friendly” to plaintiffs in defamation matters than other jurisdictions.

Suing for social media defamation

It is possible to sue someone for defamation that occurs on a social media platform. It is especially important to remember when posting on social media that images, videos and comments can also constitute defamatory ‘statements’.

Remedies for defamation include injunctions, retractions and damages. Legal proceedings must commence within one year of the publication of the material. In order to sue, the following elements must be present:

1. The statement must be published to a third party. For instance, making a Facebook post or sending a Tweet would constitute publication.
2. The subject of the statement must be identifiable. The person’s name does not have to be mentioned, but the identification must be obvious to a reasonable audience. Thus, a post or tweet about an unnamed and unidentifiable person is not defamation because the person receiving the information is not expected to connect it to a particular individual. 
3. The defamatory statement must be untrue, with no factual basis.
4. The statement is not general but rather specifically aimed (either directly or indirectly) at the person or business. There is a difference between declaring that all bankers are corrupt and stating that a particular identifiable banker is corrupt. It is only in the second circumstance that the banker could potentially face damage to their reputation.
5. The statement must damage or be likely to cause damage to the subject’s reputation. In most cases, plaintiffs will cite lost income, lost business, harassment from journalists and even relationship breakdowns as consequences of defamation.

Examples of social media defamation

The following are examples of defamation that can occur on social media.

• Spreading slanderous, false accusations about a business with the intent of damaging its reputation.
• Sharing a video that contains false comments about someone to defame them and harm their reputation.
• Posting a Google review that is false and intended to tarnish the business’ reputation.

Defences against defamation

There are defences against an accusation of defamation, namely that:

• the statement is substantially true
• the statement is an honest opinion based on facts that are in the public interest
• the communication was a qualified privilege made without malice, such as a peer review or government report.

Recent reforms in this area of law have significant implications for social media defamation. Notably, there is now a public interest defence to protect responsible free speech and journalism. A “serious harm” threshold has also been introduced to discourage trivial claims.

Case study

In 2023, the District Court of Townsville found that a Queensland woman defamed her former neighbours. The court heard that Ms Gooding posted on a local Facebook Crime Alert page, falsely accusing her neighbours of being paedophiles. The posting was only online for 90 minutes, and Ms Gooding subsequently claimed that she was not responsible for the posting as her account has been hacked. Judge Coker dismissed her defence as demonstrably false, and found the publication entirely unjustifiable, improper and lacking bona fides, because “the defendant knew that the imputations contained within the post were false”. The judge also determined that the defamatory statement had caused harm to the couple, who faced social ostracization in the small Townsville suburb and abandoned their plan to adopt a child. Ms Gooding was ordered to pay $279,000 in damages to the plaintiffs.

Social media is facing ever increasing scrutiny and restriction in Australia, from workplace social media policies to the proposed ban for children under 16. Both these policies reflect the real damage that social media can cause. When someone uses social media in a harmful way to defame someone, the subject has recourse through Australian law. Get in touch with Go To Court Lawyers on 1300 636 846 for more information on social media defamation in Australia.