Social media and defamation

The transformation of traditional concepts of media has created a range of complex new challenges for media lawyers. In particular, multifaceted issues arising from social media in the context of the conventional law of defamation include jurisdictional concerns, responsibility for publication and the vast potential for damage to reputation (in addition to contempt and privacy issues). The need to revisit defamation laws is increasingly apparent, to ensure both reputation and freedom of expression are adequately protected in the age of social media. Corrs Chambers Westgarth Partner and Melbourne Press Club committee member Richard Leder provides an overview of some of the challenges to existing Australian media law posed by social media.

Media and law

Social media overview

Social media, in general terms, involves communication of published matter among users of a particular media service or ‘hub’  Although the category of social media is broad, it is generally associated with social networking sites in their capacity as interactive global media forums.  Familiar examples include Facebook, Twitter, virtual worlds, and file sharing sites, including YouTube and Tumbler.  More generally, social media encompasses internet review sites and personal blogs, facilitating communication, dialogue and the interactive participation of members; this hybrid use has created a social media phenomena which permits individuals or organisations to widely publish in an unregulated forum.

Social media is clearly distinct from industrial media due to, amongst other things, its vast potential for publication, useability and anonymity.  As such, it presents challenges to longstanding media laws and specifically, defamation laws, far greater than those presented by traditional media.  These arise from the fact that defamation laws were drafted in an era with no relevance to the particular idiosyncrasies of social media in a defamation context. Specifically, it is apparent that there is an increasing divergence between content published by social media users, and the boundaries protecting reputation established by Australian uniform defamation laws.

 A key point to make at the outset is the global nature of social media, indeed its geographical creation point and hub, and the consequential inadequacy of Australian laws.  Social media sites are almost exclusively based and programmed in the United States, for example, Twitter Inc, the company that operates the service and associated website, is based in San Francisco, California, with additional servers and offices in San Antonio, Boston and New York.  Facebook and YouTube are also both based and programmed in Palo Alto, California, reflecting the geographical location of social media hubs in some of the most liberal states in the world, at least in the context of freedom of expression.

The US provides perhaps the most marked contrast to defamation laws in comparison to Australia, particularly in the context of the current legal position of media defendants in defamation actions. In the United States, the concept of freedom of expression is upheld via judicial interpretation and express constitutional protection of first amendment jurisprudence.

North American law so values freedom of expression that it is frequently favoured over a plaintiff’s right to protection of reputation;  by contrast, Australian defamation laws aim to ‘balance’ reputation and free speech, though the reality is that, given the lack of constitutional freedom of expression, often the balance is weighed in the plaintiff’s favour.  This position is difficult to reconcile with a social media, the new media, that is, for the most part, under-regulated, where control, or lack of it, is at the heart of concerns over social media and protection of reputation.

New media, old law

This juxtaposition between new media and old law, and the problematic nature of reconciling Australian defamation laws with social media, requires an analysis of the context in which the Australian uniform defamation laws (UDL) were drafted.  The UDL aimed to address the issues inherent in traditional media and notionally are therefore relevant to traditional media dissemination contexts, for example, liability for republication, whereby the UDL confers responsibility for republication on every individual who republishes: the journalist who drafts an article, and the liability that may accrue to the media corporation.

Publication of course may be made jointly by multiple defendants, including author, editor, printer and distributor;  each may be jointly and severally liable.

Liability for servants and  agents will apply provided the publication was authorised and made in the course of employment or within scope of agent’s authority.

Perhaps no concept in defamation law more starkly demonstrates the disparity between traditional media and social media than that of publication.  The High Court of Australia stated in 2002 in Gutnick v Dow Jones that the general rule of internet publication is that defamation occurs at the place where the material is made available in comprehensive form, where material is downloaded and read via a web browser, where the tort is complete and damage to reputation may occur.

This definition is clearly confined to the era in which it was decided, prior to the new media surge of the last decade.  Despite the increase of publication potential in a social networking sphere, there is a distinct lack of recent High Court of Australia authority or jurisprudence regarding applicability of Gutnick principles to social media, and the increase in ‘general public publishers’ via personal blogs, social networking and review sites.

In a social media context, potential for sharing published matter, and for publication generally, is vast; for example, ‘re-tweeting’ pictures, by joining and commenting on ‘walls’ of Facebook groups, by the republication of statuses or commenting on photographs accessible by the general public. Social networking sites permit users of ‘groups’ to be joined without their consent, exponentially increasing potential for republication of and liability for defamatory material.  There is the possible availability of the UDL defence of innocent dissemination, yet to be tested in the context of the internet.

 It is convenient to consider the notorious AFL ‘St Kilda schoolgirl’ scandal.  The facts perhaps by now do not necessitate repeating, but in summary, a minor published and claimed ownership of nude photographs on Facebook of two AFL players, on the basis that she had photographed the players, thus asserting ownership over the photos.  It was later revealed that she had obtained the pictures without the consent of the subjects, who threatened actions in defamation and breach of privacy. 

Numerous websites had already republished the content, on the basis that the photographs were owned by the minor, and had been consented to (providing the obvious contrast to Ettinghausen).  In Ettinghausen the Supreme Court of New South Wales found that the publication of a nude picture of a rugby league player had the capacity to defame him, by way of exposure to ridicule.

In the St Kilda case, it was revealed that photos were not owned by the schoolgirl nor consented to,  rendering every individual who had republished the pictures potentially liable for defamation.  Further issues of privacy and contempt also loomed large, particularly due to the suppression orders in place regarding the minor. Although defamation proceedings were later abandoned by the plaintiffs, the case exemplified the juxtaposition of vulnerability of both plaintiffs and potential defendants to liability,.

Further, the case highlighted the inadequacy of analogous precedent when dealing with the complexities of social media.  Ettinghausen was decided in 1993, and related to a magazine publication, immediately recalled with further publication prevented.  It offered a direct contrast to the pictorial matter in the St Kilda case, where it is still possible to ‘google’ and locate the offending images.

Blurring jurisdictional boundaries

Social media also presents an array of jurisdictional complexities and has clear potential to damage reputation in a vast geographical scope.  The global nature of social media also highlights issues regarding appropriate law and jurisdiction to sue, and the increasingly apparent ‘forum shopping’ opportunities for plaintiffs.  There is an obvious vulnerability of private individuals to cyber defamation and a corresponding difficulty of legal redress. Further, media and private individual defendants are exposed to the complexities of defending actions in foreign jurisdictions.

 A case in point is Evony v Everiss. The case concerned a USA-based online-gaming company plaintiff, with over 8 million players registered globally.  The plaintiff company initiated defamation proceedings against UK blogger in the Supreme Court of NSW. The plaintiff claimed that defendant had, by suggesting via blog publication, defamed the plaintiff by suggesting that the plaintiff sent advertising spam, associated with fraudsters and had stolen IP rights from other online gaming developers. 

Despite the fact that the plaintiff company was registered in US and that the defendant was based in the UK, the plaintiff claimed that the proper forum was New South Wales, due to numbers of ‘online’ players located in Sydney.  Despite opposition from the defendant, the global nature of the online social media business determined that the plaintiff had an array of choice regarding where to commence proceedings.  The plaintiff company was eventually forced to abandon proceedings due to a huge volume of anonymous comments regarding the case posted on internet forums and other social media sites, overshadowing the launch of the company’s next product and further damaging the company’s reputation.  The case exemplifies the need for regulation regarding proper forums  in which plaintiffs may sue for social media defamation.

Social media and identification

Social media has also clearly increased the potential for pictorial defamation, as users may be unaware that an unauthorised photograph published via social media, possibly coupled with comments and published without permission, may be defamatory.

As previously indicated, social media provides an open forum for review, blogs, and general public critique.  With unregulated freedom of expression comes increased potential for anonymous social media users to publish defamatory matter, making it difficult for plaintiffs to identify the proper defendant.  Where defamatory matter has been published, seemingly ‘anonymously’ by an unidentified original publisher, a logical course of action is to bring the claim against the relevant ISP, or entity with capacity to exercise editorial control over content.  The position is somewhat unclear in Australia, with courts having considered various outdated ‘bulletin board’ cases to determine liability.   Whilst traditional media allows a plaintiff to sue for non-permanent publication, for example, radio broadcast, by contrast, matter published on social media is viewable by a far greater audience and may remain accessible for a significant time before plaintiff can take action to remove content.  Further, thereafter defamatory material remains in ‘cache’, accessible even after deleted.

Intersections: privacy and contempt

Arguably, some of the most significant implications of social media include the erosion of privacy, and it is in the context of privacy that law reform may occur before too long.  At present, there are various codes which attempt to regulate media, such as the Media Entertainment and Arts Alliance (MEAA) Journalist’s Code of Ethics, Press Council Statement of Principles, Press Council Privacy Principles (for example, when reporting on death), and Broadcasting Codes of Practice. 

Australia is of course signatory to the International Covenant on Civil and Political Rights, which provides that no person should be subject to arbitrary or unlawful interferences with their privacy, family, home or correspondence. Further, some statutory protection is offered by the Privacy Act 1988 (Cth), although it is noted that at present media are exempt in circumstances where the organisation is publicly committed to observing a set of privacy standards (s7B(4)).

Peripheral protection is offered by the Information Privacy Act 2000 (Vic) and Health Records Act 2001 (Vic).  It is clear however that calls will continue for privacy laws to be revisited to maintain individual’s right to privacy and to control dissemination of personal information via social media.

A number of UK cases have considered privacy hearings and judicial consideration has been directed to reporting restrictions and privacy in the sphere of social networking sites.  In Robinson v Sunday Newspapers, the defendant newspaper had published photographs of plaintiff during a rehabilitation program.  The  plaintiff brought claims including breach of confidence, misuse of private information and harassment.  Treacy J granted an injunction and rejected an initial application for the hearing to be held in private, stating there was no evidence that a public hearing would increase risk of mental harm to the plaintiff.  The plaintiff appealed, although the Court of Appeal denied that appeal, stating that whilst the defendant might honour a reporting restriction, judicial notice had to be given to social networking sites, stating:

We are satisfied that we should take judicial notice of the fact that social networking sites, Twitter and the internet generally now provide an alternative means of publication to traditional newspapers….the internet is difficult to control and the source of publication may be outside the jurisdiction of the court… there is a real danger that if these proceedings were open to the public the information disclosed would be disseminated on the internet even if a reporting restriction was imposed.

Social media and defamation defences

The availability of defamation defences may be reduced given the operation of UDL defences..  For example, the fair comment defence provides a defence to personal opinion, where that opinion is clearly comment as opposed to statement of fact; fair comment protects matters of public interest, provided based on fact, proper material and recognised objectively as comment.  Fair comment can be defeated by malice, evidenced by proof that the opinion of the defendant was distorted, or product of a judgment warped by malice, or that the author was prompted by some purpose other than the purpose of communicating to the interested public the author’s genuine opinion. 

Although it has not been the subject of much judicial consideration, if at all, in Australia, the  availability of the fair comment defence may be difficult in the context of social media, due to public lack of knowledge about what constitutes defamatory opinion, for example,  comments on Tripadvisor, ‘hate pages’ on Facebook, or disparaging remarks on Twitter. 

Innocent dissemination provides a common law and statutory defence where a defendant can prove they did not know the published matter was defamatory, or where the matter was published merely in their capacity or as employee/agent of subordinate distributor, where they neither knew or ought to have known that matter was defamatory and the lack of relevant knowledge was not due to negligence.  It may be assumed that the defence of innocent dissemination will be more frequently utilised in social media defamation actions, and as such, reform to provide a social-media specific version of this defence may be necessary. 

It is important to note section 91(1) Broadcasting Services Amendment (online services) Act 1999, which provides any law has no effect to the extent to which it subjects ISP to liability where the internet service provider was ‘not aware’ of content. The statute does not impart  any requirement of reasonable care, a deficiency which should be queried in the age of social media. 

Reform and conclusion

In summary, social media has greatly tested the boundaries of accessibility and scope of traditional media. In doing so, it has highlighted the challenges faced by localised uniform defamation laws in dealing with a globalised media platform.  The key issues are clearly the inadequacy of localised Australian uniform defamation laws when dealing with social media, created for the most part in the United States, used globally, and with little regulation.  A tension arises when attempting to reconcile local defamation law with a global social media, based in a jurisdiction which values freedom of expression over reputation, a position which can be clearly contrasted with Australia.  Further, it is apparent that Australian courts have had to determine social media defamation and contempt cases on the basis of outdated case law, which clearly relates to a traditional media context. 

It is not the aim of this paper to provide solutions to these challenges, though a number of suggestions could be made. Primarily, some reform to existing uniform defamation legislation is suggested.  Legislative amendment could be made particularly in the key areas of jurisdiction and publication as discussed, to restrict and define jurisdiction and to place more responsibility on servers and social media ISP providers.  Further, amendment or addition of a targeted defence for publication in a social media context may be necessary.

The need for an international treaty, akin to the regulation of intellectual property or copyright, between nations is also a consideration; given the global nature of social media this kind of regulation is logical, though clearly involves challenges in implementation, necessitating discussions at an international level.

This is an edited version of a speech delivered as part of a Legalwise 'Media and the Law' seminar. Email craig@melbournepressclub.com if you would like to request copy of this article with footnotes.

View the slides from the original presentation: