Recent legal action brought against media outlets by former Attorney General Christian Porter, and former SAS soldier and Victoria Cross recipient Ben Roberts-Smith, has drawn attention to what information can and can’t be published. In both of these examples, the media outlet was alleged to have “defamed” the claimant by publishing false information that damaged their reputation. However, as a recent case in the Brisbane District Court highlights, one does not need to be the Attorney General or a decorated war veteran in order to be defamed, nor does one need to be a media conglomerate to do the defaming. A former cosmetic surgery employee discovered this at her cost when the Court ordered her to pay $85,000 to her former employer. The defaming conduct – an Instagram story.
Given the inescapable use of social media, it is important to recognise that communication in any form (even on social media) can be defamatory.
For a communication to be considered defamatory, regardless of its form, it must identify the subject either directly or indirectly and lead a reasonable recipient of the communication to think less of the subject of the communication. For example, in the case above the Instagram story was posted with reference to a photo of the employer and accused her of faking working on the frontline during COVID-19. Importantly the “falseness” of the communication was implied, leaving it to the employee to prove that the statement was in fact true – a task that often proves difficult.
As cases like this emphasise, the way we interact online in our increasingly digital world can have serious consequences. While legal action for defamation has become increasingly common – indeed Australia has been labelled the “defamation capital of the world”- reform to defamation law has been proposed to provide a more sustainable balance between the right to protect an individual’s reputation, and the reality of our communication-driven modern world. One such suggestion involves the introduction of a new threshold that requires the publication to have caused “serious harm” to the subject of the communication.
Irrespective of the push for reform, the message remains clear – regardless of whether you are a celebrity, a small business owner, an employee, a journalist, or the Attorney General, care is required when publishing information in any form about other people to avoid learning what can be an expensive lesson.
If you have been accused of defamation, or feel you have been defamed by an individual or an organisation, our team can help.