Defamation and social media – businesses need to be aware

We are often queried by our clients about the laws regarding defamation. Such queries are becoming more prevalent, particularly in an environment where anyone has the ability to easily and quickly make public comment via online reviews.  Naturally, business owners want to ensure their reputation is protected as far as possible, including online.

Last year, the High Court of Australia handed down its decision regarding Fairfax Media Publications Pty Ltd v Voller; Nationwide News Pty Limited v Voller; Australian News Channel Pty Ltd v Voller [2021] HCA 27.

Now widely known as the Voller case, the High Court’s decision imposed an array of obligations on social media users to refrain from making defamatory comments about another person. One of the major impacts of this decision is the extension of liability for a defamatory comment from the person who made it, to the owner of the webpage as well. As an example, if you’re a business owner who has a Facebook page and a person makes a defamatory comment about another person on your Facebook page, you will be held liable for the comment, should you fail to remove it.

The decision is a timely reminder to ensure all people in business are aware of the changes that were introduced to the Defamation Act 2005 and the Limitation Act 1969. A pivotal change, particularly with respect to webpage owners, is the introduction of the Concerns Notice. We have summarised the major amendments below:

  1. Serious Harm Threshold: Section 10A Defamation Act 2005 (the Act) is new to the Act, introducing a serious harm threshold. Now, when bringing a claim for defamation, the judge has to decide whether the alleged defamatory publication about a person has caused, or is likely to cause, serious harm to the reputation of the person.
  2. Single Publication Rule: Section 14B and 14C of the Limitation Act 1969 has been amended to reflect the developments in social media and online publications by limiting the period for which an individual may bring a claim to one year. The limitation period starts on the date of first publication or, for an online publication, the date the item is uploaded or sent electronically to the recipient.
  3. Concerns Notice: A new introduction to the Act is the requirement for a “Concerns Notice” to be provided by the aggrieved individual to the proposed defendant prior to commencing proceedings. Defamation proceedings cannot be commenced in court unless the proposed defendant has received a concerns notice from the aggrieved individual detailing the imputations (stating what is defamatory) and allowing a period for an offer to make amends (such as retraction or publication of an apology).
  4. Defences: There were also several amendments made to the defences available to defendants to a defamation claim. These include:a. Contextual Truth:
      1. where a defendant is able to prove that the publication held one or more imputations that were substantially true and the remaining imputations do not further harm the reputation of the plaintiff, then the defendant will be able to rely on the defence of contextual truth.

    b. Public Interest: where a defendant is able to prove that the publication held a matter of public interest and the defendant reasonably believed that the publication was in the public interest, then the defendant will be able to rely on the public interest.

    c. Peer Review: where the defendant is able to prove that the publication was in a scientific or academic journal (which can be electronic), the matter of the publication relates to a scientific or academic issue and the publication’s merit has been independently reviewed on its merit by the editor of the journal or an expert in the area concerned.

    d. Triviality – defence no longer available: previously, it was a defence to a claim where a defendant was able to prove that the circumstances of publication were unlikely to sustain harm to the plaintiff. This defence as now been removed from the Act.

  • Damages: the amendments have clarified that the maximum amount of damages awardable for non-economic loss is to be restricted, even in circumstances where aggravated damages are awarded. This amendment was introduced in response to an increasing frequency of substantially large awards for damages and has indicated that the maximum amount should be awarded only in serious circumstances.

These amendments are well overdue and it will be interesting to watch how they impact the state of defamation proceedings in the years to come, as well as how they interact with the Voller case. We note, however, that these amendments are not retrospective and will only apply to publications made after the date that the amendments were in force.

If you would like further advice or wish to discuss any of the above in more detail and/or assistance in defamation matters, please contact our Dispute Resolution and Debt Recovery Team on (02) 4927 2900.