Recent judgments of Australian and UK courts have shown that anyone from school leavers to media veterans can fall foul of defamation laws if they are not careful with their online comments.

In this eBulletin, we look at two recent examples of defamation in social media. We also offer some tips on how to ensure that personal or organisational social media posts made by you (or your employees) don’t leave you on the receiving end of a defamation claim.  

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Case 1 - The schoolboy

In a recent decision by the District Court of NSW, a school teacher was awarded damages of $105,000 plus costs for comments made by a former student of the school on Facebook and Twitter.

The then 19 year old, who was the son of a former teacher at the school, had mistakenly believed the teacher that took over his father's job after he left for personal reasons was responsible for his father's departure. The District Court found that as a result of this unfounded grudge, the former student published a number of defamatory online comments about the replacement teacher.

Although he subsequently removed the comments and offered an apology in response to demands from the teacher's lawyers, the Court found that the damage had been done. It ordered the former student to pay damages to the teacher of $85,000 for the "devastating" effect the comments had on her reputation and general wellbeing. He was also ordered to pay a further $20,000 for the aggravating features of his conduct, including his subsequent attempts to argue, without proper foundation, that the defamatory remarks were true.

Case 2 - The social commentator

In late 2012, BBC current affairs program, Newsnight, made serious allegations of child abuse dating back to the 1970s and 1980s by "a leading Conservative from the time". While the story itself did not name the alleged perpetrator, speculation on the internet and on Twitter was rife, with many incorrectly identifying Lord McAlpine as the political figure in question.

Against this context, media personality and prominent Twitter user, Sally Bercow, sent a tweet to her 56,000 followers that read:

"Why is Lord McAlpine Trending? *Innocent face*"

The mainstream media quickly clarified that Lord McAlpine had no involvement whatsoever in the allegations, but the damage was done.

In subsequent defamation action commenced by Lord McAlpine, the UK's High Court found that the addition of the words *Innocent face* in Ms Bercow's tweet made it clear that her question was ironical, and anything but an innocent inquiry. Taking into account the state of public knowledge about the Newsnight allegations, the tweet, which would in other circumstances be entirely innocuous, was found to have the highly defamatory meaning that Lord McAlpine was a "paedophile who was guilty of sexually abusing boys living in care".

Lord McAlpine succeeded in obtaining substantial defamation settlements from Ms Bercow and a number of media outlets who had been involved in the story.

Tips for avoiding defamation claims when publishing social media posts

The above cases demonstrate that just because you don't have a mainstream media presence or thousands of Twitter followers, it doesn't mean you won't be personally held to account for your online conduct.

For those who have a large online presence, the need to be sure of your facts before publishing them is essential. Although truth is a complete defence to a claim of defamation in Australia, the Lord McAlpine case demonstrates that, just because other online sources may have already said it, this will not provide a defence if the accusation is subsequently proved to be unfounded.

It is also important to be aware that everyone involved in the publication of defamatory content can be held separately liable, irrespective of whether or not they intended to convey a defamatory meaning. For companies, this can include correspondence issued on their behalf by employees, or even staff or customer comments on company websites or social media platforms.

While there is no substitute for expert defamation advice, before you or your employees take to social media, it is important to consider some key questions: 

  • Is this really something you would be happy to have accessible "forever" on the internet? 
  • Is the information being posted true to the best of you or your organisation's knowledge, or are you relying on third party sources? 
  • Is the information that you have published factual, or have you also included your own inferences? If so, can you support these with evidence if necessary? 
  • If you or one of your employees intend to publish something that could potentially be considered controversial, have you tried to seek a comment from the person or people about whom you are making your remarks? 
  • Does your audience need to know the information you are planning on publishing?

Regardless of who you are or how many followers you have, it is important to take care in what you say online. You can definitely be held accountable for your tweets and other social media posts, so if the answer to any of the above questions is "no" or "I'm not sure", then it is a good idea to think very carefully before you hit "comment" or "send"