The recent cases of M v B, H v W and Isparta v Richter and Another all show that social media is subject to the same laws as other forms of expression or publication. Comments you make on Facebook, Twitter and other digital platforms can be defamatory. You are responsible for making sure they are not.
What is defamation?
Defamation under common law is the wrongful and intentional publication of a defamatory statement about a person.
'Publication' is simply making defamatory information known to at least one person other than the person defamed. It doesn't need paper; only an audience.
A 'defamatory statement' is one that would lower a person's reputation in the eyes of another. The statement can be true, or a lie, or a mistake. If it negatively affects someone's image, it's defamatory.
When is defamation protected?
A defamatory comment is generally legally protected and therefore not 'wrongful' when it is:
What about freedom of expression?
Some view the internet as a place where anything is allowed under the sweeping constitutional right to freedom of expression. But freedom of expression can be limited by competing constitutional rights to dignity and reputation. It's a question of balance.
Who is responsible for unlawful comments online?
It's up to you to make sure that you don’t perpetuate hate speech, defamation, bullying, harassment or incitement to violence in your online dealings. These forms of expression aren't protected by law and could result in legal action against you.
Any platform that publishes your comments could also be sued. There are some grey areas around how much responsibility a platform has for its users' online comments. But most operators accept the need to moderate or delete unlawful comments they know about.
Does anonymity help or harm the freedom of expression?
There's no clear answer to this question. In fact, both sides have persuasive arguments for them. On the one hand, anonymity allows you to express your true opinions without fear of intolerance, harassment or victimisation. In doing so it can promote robust and free debate. On the other hand, attaching your name to your words can persuade you to contribute positively, responsibly and respectfully to a conversation.
Many online platforms and social media operators seek to balance competing rights in a pragmatic way. For example they allow pseudonyms or avatars linked to email or IP addresses that can be used to identify abusive individuals where necessary.
Think before you post!
The increase in legal action related to statements made in the digital sphere proves one thing: if you wouldn’t want the world to see your words printed in a magazine next to your name and picture, you should think very carefully before you say it online.
This article was prepared by Kevin Hoole of Michalsons attorneys. It is for general information only. It is not legal advice. Ask your lawyer if in doubt.
What is defamation?
Defamation under common law is the wrongful and intentional publication of a defamatory statement about a person.
'Publication' is simply making defamatory information known to at least one person other than the person defamed. It doesn't need paper; only an audience.
A 'defamatory statement' is one that would lower a person's reputation in the eyes of another. The statement can be true, or a lie, or a mistake. If it negatively affects someone's image, it's defamatory.
When is defamation protected?
A defamatory comment is generally legally protected and therefore not 'wrongful' when it is:
- true and in the public interest, which means the public has a legitimate need to know the information and would not simply find it interesting or tantalising; or
- fair comment, being an honest and non-malicious opinion based on known facts; or
- privileged, which is when one of several special forms of social or legal protection apply to a right or duty to publish a statement.
What about freedom of expression?
Some view the internet as a place where anything is allowed under the sweeping constitutional right to freedom of expression. But freedom of expression can be limited by competing constitutional rights to dignity and reputation. It's a question of balance.
Who is responsible for unlawful comments online?
It's up to you to make sure that you don’t perpetuate hate speech, defamation, bullying, harassment or incitement to violence in your online dealings. These forms of expression aren't protected by law and could result in legal action against you.
Any platform that publishes your comments could also be sued. There are some grey areas around how much responsibility a platform has for its users' online comments. But most operators accept the need to moderate or delete unlawful comments they know about.
Does anonymity help or harm the freedom of expression?
There's no clear answer to this question. In fact, both sides have persuasive arguments for them. On the one hand, anonymity allows you to express your true opinions without fear of intolerance, harassment or victimisation. In doing so it can promote robust and free debate. On the other hand, attaching your name to your words can persuade you to contribute positively, responsibly and respectfully to a conversation.
Many online platforms and social media operators seek to balance competing rights in a pragmatic way. For example they allow pseudonyms or avatars linked to email or IP addresses that can be used to identify abusive individuals where necessary.
Think before you post!
The increase in legal action related to statements made in the digital sphere proves one thing: if you wouldn’t want the world to see your words printed in a magazine next to your name and picture, you should think very carefully before you say it online.
This article was prepared by Kevin Hoole of Michalsons attorneys. It is for general information only. It is not legal advice. Ask your lawyer if in doubt.
