The internet and social media have changed the ways in which we publish, interact with and dispense information. Social media has also boomed, with platforms like Facebook and Twitter providing easily accessible forums for people to voice their opinions and reach a wide audience at the touch of a button. So in what circumstances can an unfavorable review on Defamation on Facebook?
Nations states are enacting defamation laws, arraying online defamation insinuations, yet no strict definition is framed to encapsulate any or all implications of online defamation inference published by users.
‘Defamation on Facebook’ is particularly topical at the moment and recent Court decisions not only provide a strict warning to Facebook users about the concerns of online abuse but also highlight some of the impractical restrictions of social media platforms such as Facebook, demonstrating the desperate need for reform of the defamation laws.
Here, it is has provided some useful steps to follow if you believe that someone has posted defamatory material on your Facebook page. However, the first step is to understand the elements that must be established in order to succeed in a defamation action.
Who can sue?
One of the current issues currently being considered in the review of the model defamation provisions is whether the provisions should be changed with regards to the right a legal person currently has to sue for defamation. Follow legal body can sue and be sued;
Governmental organization ( strict rules apply, where defamation established, an action for injurious falsehood, which is available where a defendant malevolently publishes false material which causes special damage to the company or its property). These actions are much harder to prove than a claim for defamation.
Elements of defamation:
To successfully bring an action in defamation, a plaintiff must demonstrate that:
the material is defamatory;
the material “identifies them”; and
the material has been “published” by a third party.
An action in defamation must also be commenced within the limitation of the publication of the alleged defamatory material.
A defamatory declaration does not need to be in writing, it may be an image or insinuation. The defamatory material will convey a “defamatory imputation”, if the material tends to lower that person’s reputation in the eyes of reasonable members of the community, or exposes them to ridicule or contempt.
Material identifies an individual:
Where material has been shown to be defamatory, it must identify the plaintiff. It does not need to specifically name the plaintiff, but the material must reasonably lead persons familiar with the plaintiff to believe that he or she was the person referred to.
Material has been published if it has conversed in a third person. However, where such material is available online and is proficient in continually being accessed by users, it can be difficult to determine when the “publication” has occurred.
The Australian courts have ruled that, in the digital age, “publication” of material over the internet occurs when that material is downloaded from a computer. Consequently, where the material is available online, the publication of that material can be ongoing as each time an internet user downloads that material, a publication under defamation law is taken to have occurred and a fresh claim may arise each time.
While it is easy for a plaintiff in a defamation action to prove that he or she has been defamed, the real battle is to defeat the several defenses which the law of defamation provides to defendants. Some of those defenses include:
- Qualified privilege – where the defendant proves that the recipient has an “interest” or “apparent interest” in having the information on a particular substance, the material was published to the recipient in the course of giving them that information and the conduct of the defendant in doing so are realistic.
- Honest opinion – where the defendant proves that the matter was a manifestation of opinion related to a matter of public interest and that opinion is based on suitable material.
- Truth – where the defendant proves that the defamatory meanings, which the plaintiff says were carried by the statements, were considerably true.