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Do defamation laws need to be updated in the digital age? (part 2)

23rd Jul 2020

Common distinct features of online publications

Before considering whether defamation laws need to be updated in light of this new environment, it is important to note certain characteristics that distinguish publications in the digital age of social media and the internet generally from those in more traditional forms.

In Brose v Baluskas & Others,[1] Judge Muir pointed to six propositions in considering ‘the more general and commonly known characteristics of social media’:

1. It is relatively unregulated.[2]

Most online platforms require users to accept standard terms of service on how the forum is to be used. However in practice these providers rarely want to get involved and intervene if there is a breach of their terms of service.

2. It has similarities to ‘pub chat’.[3]

Online forums and social media are perfect platforms to allow people to make ill-informed, false or exaggerated allegations and air specific personal grievances in an obnoxious manner.

Eady J distinguished online discussions from more traditional, journalistic outlets by noting they resemble ‘contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or “give and take” … People do not often take a “thread” and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contribution if they feel inclined, and think no more about it.’[4]

3. It has the capacity to change the interpretation of the ordinary reasonable reader.[5]

The ordinary reasonable reader will likely be aware of the potential for unreliability and false or exaggerated claims in social media posts. This may result in their not attaching too much credence to many such posts.

This will lead to a more critical review of not just who the ordinary reasonable reader is in the specific circumstances but of what they may have understood from their experiences.

Careful consideration of these cues is not unfamiliar to defamation. For example, case law suggests that the placement of a publication in the editorial section or gossip column of a newspaper will identify to readers that it contains more assertions or opinion than facts.[6] The difficulty in scrutinising publications in the digital age is not only identifying the ordinary reasonable reader but how that reader would interpret the reliability of that information, especially where the same information can appear on different forums.

4. It is difficult to identify the ordinary reasonable reader.[7]

Publications online can vary drastically in terms of scope of publication. For example, some online publications are capable of being viewed by a global audience, others by a relatively small community group dedicated to a particular topic.

The test established by case law is: ‘the hypothetical reader is taken to be representative of those who would read the publication in question’.[8]

5. It has unique features which impact the interpretation.[9]

Online publications allow for the author to post a number of pictures, non-standard characters and emojis which affect the manner in which the publication is to be understood and interpreted.

6. It is multi-dimensional.[10]

This is perhaps the most challenging aspect of online publications.

Publications are very rarely read in isolation, especially when the reader is interested and has information available at the touch of a button. The interpretation of one particular comment can be greatly affected by others, even ones posted later. This means that the meaning can change over time and makes the subtle task of assessing any defamatory imputation of a particular publication even more difficult.

What changes should be made to defamation laws?

The Defamation Working Party established by the Council of Attorneys-General is currently undertaking a review of the Model Defamation laws in Australia (including South Australia’s Defamation Act 2005) to identify areas for national reform. 

It published the first set of recommended legislative changes late last year. These include replacing the existing defence of triviality[11] (where the onus is on the defendant) with a ‘serious harm’ threshold test for claimants to satisfy.[12] This seems a reasonable change in current circumstances and should have the desired effect of reducing, if not eliminating, the many claims of (generally online) defamation (for example, of limited circulation, of a domestic nature or between neighbours) which come before the courts where the harm caused to reputation is quite minor.

Significantly, the proposed test will be as to whether the defamation has actually caused serious harm (or is likely to do so) and, it seems, will operate at the time of instituting proceedings (or perhaps of the trial itself) rather than predictively at the time of publication, as with the triviality defence (‘the circumstances of publication were such that the plaintiff was unlikely to sustain any harm’).

Also of particular relevance to online publications is the recommended introduction of a ‘single publication rule’ (more correctly, a first publication rule), where the one year limitation period[13] for instituting proceedings for defamation will ordinarily be calculated from the date of first publication of the defamatory material (rather than, as at present, applying separately from the date of each discrete bilateral publication). 

Other recommendations include changes to certain existing defences (for example, contextual truth,[14] honest opinion,[15] statutory qualified privilege[16]) and the addition of the new defences of ‘reasonable communication in the public interest’[17] and of ‘scientific or academic peer review’. These changes will apply to both traditional and online forms of publication, but may be expected to have relatively limited application to social media platforms.

It will however not be until the second stage that we will know of the Defamation Working Party’s recommendations as to possible changes in the responsibilities and liability of digital platforms for online defamatory content. There is already pressure from the traditional media following Voller, as well as from Google, Facebook and commercial interactive websites, to be excluded from responsibility for third party commentator posts. This pressure should be largely resisted. If not, persons with justifiably good reputations will have no effective remedy for the serious harm caused by posts made by persons of straw (and/or residents overseas) which, but for the global or widespread reach provided by these platforms (for their commercial advantage), would have very limited, if any, impact.

We take the view that it is premature for other changes to defamation laws to be made beyond those already recommended. As the six propositions advanced by Judge Muir in Brose indicate, the courts are alive to the distinct characteristics of online publications and their implications for determining defamatory meaning.

We consider the courts should be allowed for the time being to develop this aspect without legislative interference.

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See last week’s Opinion for part one of this article and find out who is a publisher and the differences between primary and secondary publishers.

This is an edited version of an article that first appeared in The Bulletin, the journal of the Law Society of South Australia, vol. 42, issue 5, published in June 2020, pp16–18.

 

Richard Bradshaw is widely regarded as one of Australia’s leading practitioners in the area of Aboriginal land rights. Starting his working life as a commercial lawyer, Richard initially practised in England and Wales. He migrated to Australia in 1978 and, after three years practising commercial law in Sydney, he was appointed a Senior Legal Officer (and subsequently the Principal Legal Officer) of the Pitjantjatjara Council based in Alice Springs. There he used his considerable skills to advise the Council on land, mining, commercial and other legal issues. Richard joined Johnston Withers in 1990 and became a Director of the firm in 1996, bringing with him his expertise in Aboriginal land rights and native title, defamation and commercial law.

Richard has been a member of the Law Society of South Australia’s Aboriginal Issues Committee since its inception in 1997 and has authored and presented many papers on land rights and native title.

Richard’s other primary area of practice is defamation law. He was involved in the landmark Chakravarti High Court decision which resulted in Johnston Withers’ client being awarded what was at the time the state’s highest defamation payout. He has represented a number of high-profile clients (including South Australia’s then Premier, Mike Rann) in their defamation actions.

Richard also practises in commercial law matters generally.

Caitlin Walkington is a long-time member of Johnston Withers Lawyers, commencing work as a law clerk in 2011 and then continuing on as a solicitor after her admission in 2016. Caitlin is a member of the commercial law team and wills and estates team, assisting clients with a broad range of transactional and commercial litigation matters. Caitlin has a particular interest in estate planning and disputes, defamation (social media claims) and regularly appears in the magistrates, district and supreme courts.

Caitlin prides herself in being able to simplify complex legal ideas and effectively manage and reduce clients’ stress.

Like many of Johnston Withers’ staff, Caitlin hails from the country and loves regularly goes back to visit family in Jamestown. Outside of work Caitlin has a strong passion for gardening (spending hours in her veggie patch) and visiting friends and family in the country or at the beach.

Caitlin has volunteered for a number of community-run legal centres to help the disadvantaged including the Multicultural Community Council of SA, the Aboriginal Legal Rights Movement Inc. and the Consumer Credit Law Centre SA.

The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

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Tags: technology defamation social media