You can’t say that

An introduction to defamation law in Western Australia in the social media age.

The immediacy and informality of social media has made it a place where people think they can say anything – believing that because they are sitting in their own homes behind their own keyboards, they are safe from repercussions.

How wrong they are.

The Courts regularly see cases where people are sued in defamation for comments made rashly on various internet social media sites, and people are being awarded damages for those comments.

So – what is defamation?

Just as you can be awarded compensation for damage to your person or property, you can be awarded compensation for damage to your reputation.

However, while defamation at its essence is a very simple legal principle, it is extremely complex in practice as the law attempts to walk a tightrope between allowing people to freely communicate, while not allowing people to unreasonably besmirch people’s good standing in the community.

There are just a handful of elements needed for something to be defamatory:

1. There must be publication of a statement to others,
2. The subject of the statement must be identifiable and that person be capable of being defamed,
3. It must covey a meaning which lowers the estimation of the person defamed in the eyes of the reasonable person or causes them to be shunned or avoided, or brought into hatred, ridicule or contempt.

The first critical issue is that information must be published to a third party (or parties). It is not defamation to think badly of someone else – it is not even defamation to tell someone they are a jerk to their face. But if you communicate your displeasure with someone in a way that a third party becomes aware of the communication, the element of publication is satisfied. In the case of social media, that means that a group post, comment or message will certainly constitute publication as soon as it is seen by any person other than the maker and the defamed person.

The second issue is that it needs to be about a person and that person be capable of being defamed. You are not immune if you do not name the person. So long as the person being referred to is identifiable, the comment can be defamatory.

However, certain entities cannot maintain a claim for defamation. A dead person cannot be defamed. A Corporation with more than 10 employees cannot be defamed. However most defamatory comments will be about individuals – and they are capable of being defamed.

Finally, the comment about the defamed person must be injurious to their reputation. This is assessed by reference to the imputations a statement carries.

It is not defamation to praise someone – however praise which is sarcastic may carry defamatory imputations. So, if I said, ‘you are soooo smart’ in a mocking tone, the imputation that arises from that statement is the exact opposite of its obvious meaning.

Similarly if I was to say ‘I don’t know what happened but when I left last night you were the only one here and there was $100 in that drawer and now it is gone.’ The obvious imputation from such a statement is that you are a thief and have stolen the money.

There are, of course, defences to claims of defamation. The first and most common one is the defence of justification – or truth. It is not defamation to say something which is true (or substantially true).

In addition, it is a defence to a claim for defamation if you were under a duty to disclose information to a person with an interest in receiving it. To illustrate – if you told some people at the pub that you thought you saw John Jones break into a house – that would likely be defamatory. If you told the police you saw John Jones break into a house – that would likely be protected.

There is also a defence of fair comment and honest opinion – which illustrates the tension the law faces between free speech and defamation. Where you are honestly expressing an opinion on a matter of public interest and that opinion is fairly based and clearly presented as just an opinion – even when the opinion is incorrect – it might still be protected.

What should I do if I think I have been defamed?

The first thing you should do is seek legal advice from CS Legal. We will review the defamatory material and advise you on how to move forward. If we believe you have been defamed, the standard response is to issue what’s called a Concerns Notice.

What if I have received a Concerns Notice?

A Concerns Notice is the standard precursor to defamation proceedings and should be taken seriously. The Concerns Notice should inform you of the alleged defamatory statement you are claimed to have made, the imputations that arise from the statement, and invite you to make an offer of amends.

Once you receive the Notice you should immediately seek legal advice from CS Legal to discuss your options. Those might be to make an offer of amends, or they might be to defend the claim.

Either way, this article should be a reminder to think before you speak – or type – and to seek legal advice if you have been defamed, or if you may have defamed someone else.