2. You're liable where you're downloaded
In Australia and other countries, a recurring legal principle is that liability for defamation exists where the defamatory material is published, and in the case of internet publication, this increasingly means wherever you're downloaded. There are hundreds of legal systems in the world and it's possible you could be sued in many of them for any defamatory comment you post via the web or social media. Practically speaking, this won't be a problem for most resident Australians, but for businesses with interests in other countries or frequent overseas travellers, it's worth bearing in mind.
3. Publisher is defined broadly
In addition to the person who writes a defamatory communication, publisher liability also extends to anyone who reproduces it (so think twice before you hit that 'Retweet' button). Historically, if a defamatory article was published in a newspaper, the journalist, the editor, the publisher and even the newsagent could variously be held liable as publishers. These days, the same broad liability is being held to apply to web sites and Facebook pages, so if someone writes something defamatory on your web page, delete it or you might be held liable.
4. Tell the truth
There are a number of defences to defamation, many of which revolve around concepts of truth and the public interest. It's worth remembering that defamation is concerned with 'false statements' about a party. In short, if what you say is true (and you can demonstrate the truth of it), then you have a stronger defence against defamation. Check out 'Defences to defamation' further down this article.
5. Get legal advice
Above all, if you're seriously concerned that you might have defamed someone and legal proceedings are commenced, engage a lawyer. This article summarises some of the law surrounding online defamation but it's not legal advice in itself. "If you're panicking… it's a case by case proposition, but get legal advice. That's the answer," says barrister Justin Castelan. "If you get a letter of demand from someone, go to a lawyer and take it from there."
The elements of defamation
Defamation is defined as communication to third parties of false statements about a person that injures the reputation of the person or deters others from associating with the person.
In its simplest form, it means to spread a demeaning report about a party that does them harm.
For defamation to occur, the plaintiff (the person who claims to have been defamed by another) must be able to prove that three things have taken place.
First, there must have been a communication published to another (a third party, ie. someone other than the plaintiff).
Second, the communication in question must identify the plaintiff (not necessarily by directly naming him or her, but by providing sufficient detail that the plaintiff can be identified).
Third, the communication must defame the plaintiff. This third element is satisfied if the published communication exposes the plaintiff to ridicule, lowers the plaintiff's reputation in the eyes of other members of the community, causes people to shun or avoid the plaintiff, or injures the plaintiff's professional reputation.
Defences to defamation
Once all three of the elements of communication, identification and defamation have been demonstrated, it's still possible to defeat a defamation action provided the defendant can demonstrate a valid defence, which legally justifies the publishing of the communication for reasons of public interest.
There are a number of these defences, any of which the defendant must prove.
A non-exhaustive list is provided by the Defamation Act 2005 (NSW), mirrored in other states, including: justification (the defendant proves that the defamatory imputations are substantially true); contextual truth (among the defamatory imputations are contextual imputations that are substantially true); absolute privilege (protected comment issued during parliamentary and judicial proceedings); public documents (the defamatory material is contained in a public document); fair report of proceedings (the defamatory material was reported in proceedings in the public interest); qualified privilege (related to public interest); honest opinion (opinion related to public interest, as opposed to a statement of fact); innocent dissemination (distributing without awareness of defamatory matter); and triviality (plaintiff unlikely to sustain harm).
Australian defamation legislation
The Australian states and territories enacted uniform defamation legislation in 2006.
In NSW, the law is the Defamation Act 2005 (NSW), which has its counterparts in the other jurisdictions.
While not entirely uniform, this new legislative framework did help to streamline a much more disparate set of statutes in operation prior to 2006.
Like all Australian legislation and much case law, the uniform defamation acts are freely viewable online at the Australasian Legal Information Institute's web site.
