Defamation 2.0

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Generations always differ on something — music and clothing, most commonly — and right now, by what I measure as a country mile, generations around the globe are most different in their use and abuse of communications technology.

This is certainly true in Iran, where roughly 60 per cent of the population is under 30 and an entire generation has been making use of YouTube, Twitter and other social media networks to draw attention to the country’s disputed election results. And in Burma, a young blogger named Nay Phone Latt was last year sentenced to 20 years jail for posting a cartoon considered offensive by one of the country’s ruling generals. His defence lawyer, Aung Thein, got four months for contempt of court because he withdrew his representation at the request of his client, who no longer had faith in the judicial process.

Here in the West, we have the freedoms these young people are fighting for, but too often use them — as two Dominos employees did in the US earlier this year — for little more than posting YouTube footage of one sticking cheese up his nose and later using it to dress a pizza. While the majority of bloggers and social media addicts take a responsible approach to the material they post, social media sites are also hosting an ever-expanding population of users publishing defamatory material under the honest belief that they are having a private conversation.

In the eyes of the law, they are certainly not.

In legal terms, defamatory material is either libellous — when it is in writing — or slanderous, when it is spoken. To qualify as defamatory, two criteria must be satisfied. Firstly, the material in question must identify the person or persons defamed in a way recognisable to someone other than the defamed party.

Secondly, the material must be published — which means that it is communicated to someone other than the person or persons defamed. Courts rely on what is known as the "natural and ordinary meaning" as the test for whether the publication conveys a defamatory meaning or imputation. Lawyers need only plead that the publication is defamatory because, while harm to a person’s reputation might be important to them personally, once the other tests have been satisfied, damage to reputation is simply presumed by the court.

While the laws of defamation haven’t changed recently, the ways in which individuals can publish material certainly have. Several recent examples demonstrate the vulnerability of users of social media to the suit of defamation.

In the US, as the UK’s Independent has reported, Courtney Love is currently being sued for remarks made on Twitter about a clothing designer. According to the New York Post, a woman’s reputation was allegedly damaged when a Facebook group implied she had AIDS, used drugs, and engaged in bestiality. And according to the New Zealand Herald, a Facebook group there maintained a page called "David Bain is guilty", which, given Bain has been acquitted by a jury in the High Court of killing his parents and three siblings, might be something they should reconsider.

Closer to home, the ABC reported that yet another Facebook group published photographs of a man charged with lighting one of the deadly Victorian bushfires and called for him to be burnt at the stake. Also in Victoria, women were harassed and bullied following publication of their names and phone numbers on a site dedicated to, among other things, the disparagement of ex-girlfriends. There is also a site warning women not to date particular men, publishing defamatory allegations about them along with photographs and other identifying remarks.

What is clear is that none of these people know anything about what the law means when it decides whether something is defamatory.

Equally alarming — and equally indicative of an ignorance of the legal issues involved in defamation — was a statement by the representative of one bullying site that his being the host of the site did not make him responsible for the material published on it. Others believe that by setting up a site anonymously or hosting it in a country like the US, where the laws related to freedom of expression are more liberal, they will be able to get away with posting defamatory material.

These people might be perturbed to read of the case of one Joseph Gutnik, who successfully sued Dow Jones for material uploaded in New Jersey, but viewed on a computer screen in Melbourne. What all users need to understand is that the internet changes nothing. If material can be downloaded anywhere in the world, it can be defamatory according to whatever that legally means in the jurisdiction in which it was downloaded.
It is vital to remember that anything communicated can be defamatory, whether it be by email, Post-it note — or in a newspaper.

The law of defamation is complex and difficult to predict but even the simplest explanation — that a person can be defamed by the publication of material that harms their reputation and anyone involved in the dissemination of that material can be held liable for its defamatory content — should prompt people to think carefully about their responsibilities when exercising a right to freedom of expression.

 

New Matilda

New Matilda is independent journalism at its finest. The site has been publishing intelligent coverage of Australian and international politics, media and culture since 2004.

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