SOCIAL MEDIA & DEFAMATION

RICHARD LEDER Partner

August 2011

Overview
Social media: the concept Defamation laws: traditional media v social media Limitations of conventional defamation laws in the context of social media
Publication Jurisdiction Reviews and blogs Liability Identification Anonymity Defences: adequacy of fair comment and innocent dissemination Impact on reputation

Intersection with privacy and contempt Reform

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SECTION 1 THE NEW MEDIA

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SOCIAL MEDIA
Diverges from traditional media in context of accessibility, usability, immediacy, semi-permanence, reach

Key Concepts
media for social interaction, using highly accessible and scalable communication techniques Involves use of web-based and mobile technologies to facilitate communication and interactive dialogue involves blending technology and social interaction distinct from industrial or traditional media, such as print news, television, film, due to vast potential for publication, useability and anonymity successful social media marketing implementation involves the creation of social authority individual or organisation establishes themselves as an expert or authority in their given field or area, thereby blurring boundaries of opinion and fact presents challenges to longstanding defamation laws far greater than print and broadcast media of radio and TV

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SOCIAL MEDIA CREATION AND OPERATION

US Law Constitutional protection of freedom of expression Media defendants favoured over plaintiffs in defamation actions Clear statutory protection offered to ISPs and internet hosting sites against third party liability for defamation Australian Law No Constitutional protection of freedom of expression Balance may be said to be in plaintiffs favour in defamation actions Unclear case law surrounding ISP liability and third party defamatory statements

SOCIAL MEDIA HUB: USCreated/Based and Globally operated

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TRADITIONAL MEDIA & PUBLICATION

New media, old law
Uniform defamation laws (UDL) drafted to address traditional media Define publication as matter communicated to someone other than the person defamed Confer responsibility for republication on every person who republishes, drafted to cover traditional dissemination contexts Publication may be made jointly by multiple defendants, including author, editor, printer, distributor - each are jointly and severally liable

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SOCIAL MEDIA & PUBLICATION

Publication liability
In a social media context, potential for sharing published matter is vast, i.e. retweeting pictures, Facebook groups, republishing status, comments on photos Social networking sites permit users of groups to be joined without their consent Such action exponentially increases potential for defamation (although consider innocent dissemination) Dow Jones v Gutnick provided HCA authority regarding defamation laws in an internet context, that defamation occurs: at the place where material is made available in comprehensive form; where material is downloaded and read via a web browser; where the tort is complete and where damage to reputation may occur. Despite the explosion of publication potential, distinct lack of recent HCA authority or jurisprudence regarding applicability of Gutnick principles to social media and increased publishers via personal blogs, forums, social media

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SOCIAL MEDIA & PUBLICATION: CASE STUDY

Case study: AFL St Kilda schoolgirl scandal
A minor published and claimed ownership of nude photographs on Facebook of two AFL players It was later revealed that she had obtained the pictures without the consent of the subjects, who threatened actions in defamation and breach of privacy Numerous websites had already republished the content, on the basis that the photographs were owned by the minor, and had been consented to (contrast Ettinghausen) Potential plaintiffs were clearly hoping to argue Ettinghausen on the basis that the photos had not been consented to When revealed that photos were not owned by the schoolgirl nor consented to, every person who had republished potentially liable for defamation Although defamation proceedings later dropped by plaintiff, highlights the vulnerability of potential defendants to liability given lack of control over social media NB privacy issues, copyright and contempt due to suppression orders in place Can still google the photos

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SOCIAL MEDIA & JURISDICTION

Blurring jurisdictional boundaries
Social media presents array of jurisdictional complexities and vast potential to damage reputation Damage to reputation possible in a wide geographical scope Issues regarding appropriate law and jurisdiction to sue are increasingly apparent, both in Australia and globally Increased incidence of forum shopping Increased vulnerability of private individuals to cyber defamation Difficulty of redress, due to inappropriate approach to cross-border social media defamation that would serve both parties fairly Highlights need for global consistency, perhaps by way of treaty

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SOCIAL MEDIA & JURISDICTION

Case study: Evony v Everiss
US online-gaming company with over 8 million players registered globally initiated defamation proceedings against UK blogger in the Supreme Court of NSW Evony claimed that defendant defamed company by suggesting in his blog that plaintiff sent advertising spam, associated with fraudsters and had stolen IP rights from other online gaming developers Despite plaintiff company registered in US and defendant based in the UK, the plaintiff could claim proper forum was NSW due to numbers of online players located in Sydney Plaintiff company eventually forced to drop proceedings due to huge volume of anonymous comments regarding the defamation proceedings posted on internet forums Publicity created on social media sites, overshadowing launch of the next game version and further damaging the companys reputation, caused plaintiff to abandon without possibility of redress

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SOCIAL MEDIA & IDENTIFICATION: PLAINTIFF

A picture speaks a thousand words
Social media has vastly increased potential for defamatory written matter to be published, even unknowingly, eg Urban Dictionary, Facebook Increased potential for pictorial defamation, as users may be unaware that an unauthorised photograph published via social media, possibly coupled with comments and without permission, may be defamatory Query availability of innocent dissemination defence, although this has not yet been tested in the context of the internet and defamation Safe harbour provisions are outdated and ISP server liability is unclear due to conflicting case law in Australia Increased incidence of identifying matter to be published via social media, for example: Urban dictionary, where users can enter definitions to slang terms and individuals names Google search engine which autocompletes terms entered into search box and pairs them with terms

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SOCIAL MEDIA & IDENTIFICATION

Case study: Google auto-complete case
Plaintiff was an entrepreneur who provides education in personal finance, with the majority of business conducted online Defendant search engine has search function that include auto-complete, which suggests words when key terms entered in search box Plaintiff was alerted to the fact that when users entered the plaintiffs name in the search function, Google suggestions paired the plaintiffs name with potentially defamatory key words (truffa or fraud, and truffatore or swindler) Despite safe harbour provisions in the European Union, Italian court (Tribunale Ordinario di Milano) found Google liable for defamation Unclear how a claim of this type would play out in Australia Safe harbour provisions could also be assessed as outdated (see s91(1) Broadcasting Services (online services) Act 1999) which provide ISP and servers with a defence where unaware of content, or ought to have known the content was defamatory

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SOCIAL MEDIA & IDENTIFICATION: DEFENDANT

Who to blame?
Social media provides an unregulated forum for review, blogs, and critique Increased potential for anonymous social media users to publish defamatory matter, making it difficult for plaintiffs to identify the proper defendant Claims of this type, with unidentified original publisher, would logically be brought against ISPs, or the entity with capacity to exercise editorial control over content See, however, safe harbour provisions and conflicting case law regarding ISP liability Traditional media allows a plaintiff to sue for non-permanent publication, eg radio broadcast By contrast, matter published on social media is viewable by far greater audience and may remain accessible for a significant time before plaintiff can take action to remove content Further, thereafter defamatory material remains in cache, accessible even after deleted

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SECTION 2 INTERSECTIONS PRIVACY & CONTEMPT

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SOCIAL MEDIA, PRIVACY & CONTEMPT

Erosion of protection
Arguably, one of the most significant implications of social media is the erosion of privacy Public inquiry and law reform seem Existing laws have limited express protection of privacy, although:
Common law and codified principles Incidental, via defamation laws e.g. Ettinghausen MEAA Code of Ethics Press Council Statement of Principles Press Council Privacy Principles (e.g. reporting on death) Broadcasting Codes of Practice Treaties No person should be subject to arbitrary or unlawful interferences with his privacy, family, home or correspondence: ICCPR art17 Statute Privacy Act 1988 (Cth): nb media are exempt where the organisation is publicly committed to observing a set of privacy standards (s7B(4)) Information Privacy Act 2000 (Vic); Health Records Act 2001 (Vic)

Calls will continue for privacy laws to be revisited to maintain individuals right to privacy and to control dissemination of personal information via social media
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SOCIAL MEDIA, PRIVACY & CONTEMPT

Robinson v Sunday Newspapers
Considered whether privacy hearings should be held private Defendant newspaper had published photographs of plaintiff during rehabilitation Plaintiff brought claim for beach of confidence, misuse of private info, harassment and breach of rights Treacy J granted an injunction, stating there was no evidence that a public hearing would increase risk of harm to plaintiff Court of Appeal denied appeal, stating that whilst the defendant might honour a reporting restriction, judicial notice had to be given to social networking sites: We are satisfied that we should take judicial notice of the fact that social networking sites, Twitter and the internet generally now provide an alternative means of publication to traditional newspapers.the internet is difficult to control and the source of publication may be outside the jurisdiction of the court there is a real danger that if these proceedings were open to the public the information disclosed would be disseminated on the internet even if a reporting restriction was imposed

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SOCIAL MEDIA & CONTEMPT

ACCC v Advanced Allergy Elimination Pty Ltd
Respondent operated clinics for diagnosis and treatment of allergies ACCC alleged contravention of the TPA in relation to publications claiming that respondent could accurately test and treat allergens and individual allergic reactions Respondent undertook not to publish claims for three years ACCC alleged applicant breached this undertaking and was in contempt of court, due to statements posted on Facebook and Twitter, and by public postings on the respondents Facebook wall ACCC stated that once the respondent was aware of a statement being placed on its Facebook or Twitter page and did not remove it, it was liable for contempt Court considered defamation bulletin board cases to be analogous Court held that the respondents were liable for contempt by publication despite not writing or posting the content the company were aware of it and had taken no steps to remove it

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SECTION 3 SOCIAL MEDIA & DEFAMATION DEFENCES

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SOCIAL MEDIA AND DEFAMATION DEFENCES

Fair comment
Defence for personal opinion, must be comment as opposed to statement of fact; Protects matters of public interest, provided based on fact, proper material and recognised objectively as comment Can be defeated by malice or that the author was prompted by some purpose other than communicating genuine opinion Availability of defence may be difficult in context of social media due to public lack of knowledge about what constitutes defamatory opinion, i.e. comments on Tripadvisor, hate pages on Facebook, disparaging remarks on Twitter Provides CL and statutory defence where defendant can prove they did not know the published matter was defamatory, OR published merely in capacity or as employee/agent of subordinate distributor, neither knew or ought to have known that matter was defamatory and lack of knowledge not due to negligence s91(1) Broadcasting Services Amendment (online services) Act 1999 provides law has no effect to the extent to which it subjects ISP to liability where ISP not aware of content - no requirement of reasonable care query relevance in age of social media

Innocent dissemination

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REFORM: UNIFORM DEFAMATION LAWS

Jurisdiction
ISSUE: Lack of appropriate legislative control, plaintiffs forum shopping REFORM: Restrictions on plaintiffs choice of jurisdiction, requirement for global consistency

Publication
ISSUE: Vast increase in publication potential and reputational damage scope REFORM: Increased liability re published content and requirement to screen published matter imparted to social media provider

Defences
ISSUE: Availability of fair comment, malice exception, innocent dissemination REFORM: Addition of social media specific defence for innocent dissemination, review of malice exception, repeal BSA ISP exception

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Questions?
Richard Leder Partner Corrs Chambers Westgarth richard.leder@corrs.com.au (03) 9672 3489

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