OVERVIEW
With the progression of social media, it is important to understand the consequences that may arise from posting a defamatory or hateful publication on Facebook or other social media platforms.
WHAT IS DEFAMATION?
Defamation is the publication of unsubstantiated facts that will likely cause harm to the reputation of an individual. Under the Defamation Act 2005 (QLD) (‘the Act’),a publication can include online media, writings, speech or drawings.
An individual or an excluded corporation can commence defamation proceedings.[1] A corporation is an excluded corporation if:[2]
- The corporation is a not-for-profit organisation; or
- The corporation employs fewer than 10 persons and is not related to another corporation; and
- The corporation is not a public body.
Any defamation proceedings are required to be commenced within 1 year from the date of the Publication. For the purposes of the limitation period, a publication occurs each time it is received by a third party and each publication of defamatory material constitutes a separate cause of action.
RECENT CHANGES
The Queensland Parliament has recently passed the Defamation (Model Provisions) and Other Legislation Bill 2021 (‘the Bill’) in attempts to modernise the Act. The key amendments to the Act include:
- Single Publication Rule: The new rule provides that the limitation period commences on the date that the material is first published. If the same defamatory material or substantially similar material is published again at a later date, it will no longer constitute a new publication for the purposes of the limitation period.
- Changes to the pre-litigation process: Prior to commencing proceedings, the claimant must provide a ‘concerns notice’ to the defendant(s), to allow them to make an offer to amends.
- Serious harm threshold (previously the defence of triviality): The claimant will have to establish that the defamatory publication has caused or is likely to cause ‘serious’ harm to their reputation.
- A cap on damages for non-economic loss: The Bill provides the maximum damages amount that can be awarded for non-economic loss, being $250,000.00 (‘maximum damages amount’). The Court still has discretion to make an order in excess of the maximum damages amount, if they are satisfied that the defamatory material warrants an award of aggravated damages.
- New defences: The Bill introduces the new defences of ‘public interest’ and ‘scientific or academic peer review’. The public interest defence is aimed at assisting a defendant in raising the defence of qualified privilege (i.e protection to journalists and media organisations covering matters of public concern). Similarly, the scientific or academic review defence will apply to independent peer reviewed commentary, to ensure academic debates can occur without fear of litigation.
ELEMENTS
Since the introduction of the Bill, there are now 4 key elements that are required to establish that a publication is defamatory:
- The publication has been communicated to a third party and the third party is aware of the publication; and
- The publication is defamatory in nature; and
- The publication references a particular person, wherein an ordinary person must be able to ascertain from the publication, that it is directed at that particular person; and
- The publication must meet the serious harm threshold.
Prior to the Bill, due to the progression of social media there was more emphasis placed on Common Law to determine whether a publication is defamatory in nature. When determining whether a publication is defamatory, there is no single test that the Courts look at. The Courts will often analyse the publication from the perspective of a ‘reasonable person’ and whether the publication would likely lower that person’s reputation, lead others to think less of that person, make others shun, avoid or cause others to ridicule that person.
REMEDIES
In Defamation proceedings any claim for damages is to be compensatory and cannot be exemplary or punitive (intended as punishment). Section 34 of the Act provides that the amount of damages sought in any defamation proceedings are to be appropriate and rational in correlation to the harm sustained by the claimant. When determining the damages that the claimant has suffered, the Courts take into the following considerations:
- Whether there has been any damage to the goodwill of an individual or their business because of the publication.
- Whether the individual has lost clients/ customers because of the publication.
- The ‘grapevine effect’ is recognition by the Courts that publications are rarely confined to the recipient of the publication. Traditionally the ‘grapevine effect’ has been applied to newspapers and magazines but is now increasingly used in cases that involve social media. Social media publications, although transient have the potential to increase the ‘grapevine effect’ dramatically.[3] An example of this, is a defamatory publication made on a community notice board on Facebook with 100,000 members. In this instance the likelihood of the publication spreading along the grapevine is significant.[4]
- Where there is no claim for economical loss, the Court will assess the damages based upon what is fair and reasonable, which can include injuries to feelings (anxiety, loss of self-esteem, a sense of indignity or the sense of outrage felt by the claimant).[5] However, the maximum amount that can be awarded under the Act for non-economic loss is limited to $250,000.00.[6] In certain circumstances, the court may deem it appropriate to make an order for damages exceeding the maximum threshold.
DEFENCES
Under the Act, the following defences are available to the publication of defamatory material:
- Defence of justification[7]wherein the defendant proves that the defamatory publication is substantially true;
- Defence of contextual truth,[8] wherein a publication involves a number of defamatory allegations, where some are true, and some are not. The Defendant proves that the untruthful allegations do not further harm the reputation of the person;
- Defence of absolute privilege,[9] wherein the Defendant proves that defamatory material was published on an occasion of absolute privilege. Absolute privilege can occur during public forums, such as parliament and proceedings in a Court or tribunal.
- Defence for publication of public documents,[10] wherein the Defendant proves that the defamatory material was contained in a public document or it is a fair summary or extract from a public document.
- Defence of fair report of proceedings of public concern,[11] wherein the Defendant provides that the defamatory material was contained in a fair report of any proceedings of public concern.
- Defence of qualified privilege for provision,[12] wherein the Defendant proves that:
- The Third Party (recipient) of the defamatory material has an interest or apparent interest in having information on a certain subject; and
- The Defendant publishes the defamatory material while giving the information to the recipient on the subject; and
- The conduct of the Defendant in publishing that matter is reasonable in the circumstances.
- Defence of honest opinion[13] where the Defendant proves that the defamatory material was an expression of opinion rather than a statement of fact or the opinion related to a matter of public interest or the opinion is based on proper material.
- Defence of innocent dissemination[14] where the Defendant proves that the defamatory material published was merely in capacity as an employee or agent, of a subordinate distributor. The Defendant would also need to prove that they did not know, nor should they reasonably have known that the material was defamatory, and the lack of knowledge was not due to negligence on the part of the Defendant.
It is again re-iterated that with the ever-changing landscape of the social media platforms, it is essential that you understand the consequences that can result from posting a defamatory publication.
If you have any questions in relation to Defamation, please do not hesitate to contact the team at Miller Sockhill Lawyers.
[1] Defamation Act 2005 (QLD), s8.
[2] Defamation Act 2005 (QLD), s9(2).
[3] Wagner &Ors v Harbour Radio Pty Ltd & Ors [2018] QSC 201.
[4] Micke v Farley [2013] NSWDC 295.
[5] Ashbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112.
[6] Defamation Act 2005 (QLD), s35.
[7] Defamation Act 2005 (QLD), s25.
[8] Defamation Act 2005 (QLD), s26.
[9] Defamation Act 2005 (QLD), s27.
[10] Defamation Act 2005 (QLD), s28.
[11] Defamation Act 2005 (QLD), 29.
[12] Defamation Act 2005(QLD), s30.
[13] Defamation Act 2005 (QLD, s31.
[14] Defamation Act 2005 (QLD), s32.