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by The FindLaw Team

So youve just been burned by an ex, and you want that person to have their comeuppance, and the traditional voodoo doll isnt cutting it anymore. What to do? Well, you decide to
turn on your computer, go online, and take out your frustrations via Facebook and Twitter, as well as posting the obligatory picture that paints them in a bad light. Your friends and
followers get a good laugh, they like or re-tweet your postings, and all of the sudden a new internet meme is born and you get your long sought after revenge. Your ex discovers the
ridicule that he or she is subjected to, and as a consequence, friends, workmates, anyone that has any interaction with him or her is subjecting your ex to the same type of ridicule in
the real world, lowering their reputation. Feeling good about your handiwork? Well, your ex isnt impressed and just as quickly, he or she accuses you of defamation.
Online defamation
The world of Facebook and Twitter is a wonder to behold, but many Australians mistake the perceived anonymity and immediateness of social media as a green light to say and do
whatever they feel like, without thinking of the consequences beyond the internet. Defaming someones character where the ordinary reasonable person views the individual in a
lesser light is a fine line to tread. Keep in mind its defamatory to:
state that someone is corrupt, dishonest, or disloyal
state that someone is suspected of committing, or alleged to have committed an illegal act
ridiculing an individual
state that someone has a contagious disease, is suffering from insanity, or say something that is likely to cause the person to be shunned or avoided, even if there is no suggestion
of bad character.
Yes, it may seem harmless to post that drunken picture of your ex, whilst commenting on their private lives in a derogatory manner might prove cathartic to your broken heart, you have
to keep in mind that your actions may have defamed your ex as well. In Australia, even if you have not made your defamatory comments in the country, according to Jason Bosland,
Senior Lecturer of Media Law at the University of Melbourne, if you have a reputation in Australia, you can be defamed no matter where in the world you made your comments.
What to do if you have defamed someone online

Now that you have realised the extent of your actions have caused: What should you do? If the material is indeed defamatory, remove the material immediately, and offer to make
amends if your ex has made a complaint that they have been defamed, within 28 days. You can make amends in writing and it must include:
offer to publish a reasonable correction
offer to pay expenses reasonably incurred by the complainant to the time of the offer.
Your ex can accept your offer of atonement, the action ends there and you can count your blessings that your ex is forgiving in nature. However, if your ex is still bitter about the whole
ordeal, and takes you to court, you do have a defence to defamation if the court finds that your offer was indeed reasonable. An apology can also be useful and its not used as an
admission of liability as well.
The next time youre on the internet, having just been spurned by your ex-lover, and are intent on posting the most embarrassing and damaging material possible; stop yourself from
pressing the send button, and pick up that voodoo doll instead. If your ex is the vindictive type (hey, theyre an ex for a reason) make sure you get the appropriate assistance.
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Six things to know to avoid

being sued for defamation in
Australia
If you tweet, have a Facebook account or post
photos on Instagram, then congratulations
youre a publisher. Here is a guide to protecting
yourself against legal action on social media
Share 309
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Paul Farrell
theguardian.com, Wednesday 5 March 2014 18.09 AEST
Jump to comments (14)
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Be careful when tweeting rumours, half truths or innuendo about

people and dont tweet in anger. Photograph: Reuters
A $105,000 damages award to an Australian

schoolteacher after a series of defamatory posts on
Facebook and Twitter has put the spotlight on how we
use social media.
Andrew Farley was just one year out of high school
when he posted defamatory messages on Facebook
and Twitter about Christine Mickle, a teacher at his
former high school. The posts, which a New South
Wales district court judge found had no substance
whatsoever cost Farley $105,000 as well as an order
to pay Mickles legal costs.
While cases about the use of Facebook have gone to
trial before, this is the first time a decision about
particular tweets has progressed this far in Australia.
Here are six ways to avoid the situation Farley found
himself in on social media.
Six things to know to avoid being sued for defamation in Australia ...
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1 of 5
1. Everyone is a publisher
The big message to take away from Farleys case is that

we are all publishers on the internet. Everyone who
uses platforms such as Facebook and Twitter can have
legal action taken against them if someone can show
they have lowered their reputation in the eyes of others.
A Snapchat or Instagram image which has a
defamatory comment could still be enough to land you
in legal difficulty.
2. Malicious messages are rarely viewed favourably
royal tour
The press got the

perfect photo
opportunity when
Prince George met
a bilby with his parents, the Duke and
Duchess of Cambridge at Taronga zoo
KFC's Double Down is
back: 'This sandwich
is America'
Adam Gabbatt
went to see if
people would eat
what was previously described as a 'new
low' in America's culinary history
Be careful when tweeting rumours, half truths or

innuendo about people and dont tweet in anger.
Australias defamation laws are favourable to people
making defamation claims. The absence of a strong
guarantee of free speech or a human rights charter has
allowed speech in Australia to be quite easily restricted
by the parliament. While some aspects of defamation
law were wound back in 2005, there are still limited
defences available compared with the stronger
protections for speech afforded to citizens in the United
States.
3. Be cautious with the courts
Tweeting or posting on Facebook about ongoing

criminal trials can also land people in hot water.
Publishing the odd tweet about an old case is probably
OK, as long as there arent ongoing legal proceedings.
But if a criminal case is still going, be very careful about
what you write online.
4. If youre on a jury, dont Facebook message the defendant
In Britain a juror contacted a defendant in a

multimillion-pound drug case online because she felt
empathetic towards his situation.
cant get anyone to go either no one budging
pleeeeeese dont say anything cause jamie
they could all miss trial and I will get 4cked
to0, she wrote to the defendant in one
Facebook post.
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More most viewed
There hasnt been a case like this yet in Australia.

5. Posts other people make on your social media profiles could still
leave you vulnerable to legal action
One of the oddities about social media is that you can

be a publisher in the eyes of the law even if you havent
typed a word. If another person leaves a defamatory
Facebook post on your wall and you fail to take it down
if somebody objects to it, you can be found to be a
publisher of that post. This has been more commonly
used against news sites or web forums that fail to take
material down after receiving notice, but one contempt
of court case in Australia has considered this very
scenario a business was found guilty of contempt for
not taking down Facebook posts made on their wall.
Follow NSA-related developments as

controversy over leaks continues to make
headlines
6. You dont have a right to freedom of speech (particularly if you
2 of 5
are a public servant)
Be careful what you tweet about your work, particularly if

youre in the public service. In a recent case an
Immigration Department employee, Michaela Banerji,
was critical of Australias refugee policies, politicians
and some of her colleagues. The department worked
out who the tweeter was and took action to dismiss her.
Banerji sought an injunction but the federal circuit court
denied it, finding there was no unfettered freedom of
political communication for her in the process.
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14 comments. Showing
conversations, threads
, sorted
LouSnickers
14
05 March 2014 9:00am
Or, be like me and dont have a Facebook or Twitter account!
2 PEOPLE, 2 COMMENTS
Stu Gmiette-Reynolds
05 March 2014 9:16am
@LouSnickers Agree on most counts with you - but in this day and age, not having
at least a presence on a social platform goes against you. I've thought about
deleting all of mine - it's near impossible to erase though. I envy you :-)
icurahuman2
Stu Gmiette-Reynolds
05 March 2014 12:36pm
it's near impossible to erase though

I haven't found that an issue. Whatever they've kept is going to be so outdated
and useless that storing remnants would be a waste of space and time. And
not having a presence on social media doesn't go against you, in fact among a
lot of teenagers (my kids included) not having a Facbook/Instagram or Twitter
account is considered cool - though I think it's more to do with being
fashionably aloof than being "safe".
Angela Rangad
05 March 2014 10:51am
Boy oh boy...gag the world
kimberleys
Angela Rangad
05 March 2014 11:00am
I agree! Most of the social campaigns for saving humans, forests, oceans,
native animals, real food, no gm food etc in all countries are on social
media. So they are now going to stop us via legal means? Totally smells
like totalitarianism to me.
icurahuman2
05 March 2014 12:30pm
Good. Anyone who is so stupid as to still belong to Twitter is a twit and anyone still
on Facebook after so many serious and dangerous negatives, including this one,
deserves a wakeup.
Tealthantos
05 March 2014 1:42pm
The department worked out who the tweeter was and took action to
dismiss her. Banerji sought an injunction but the federal circuit court
denied it, finding there was no unfettered freedom of political
communication for her in the process.
Take it to the international court then, last I checked Australia was a signatory to the
UN charter of human rights which includes the right to free speech.
So sick of people trying to claim that we don't have the right to free speech here
while telling us that we must stand behind our treaties even if we don't like said
treaties while ignoring the most important one on human rights
theoilman
Tealthantos
05 March 2014 8:32pm
it's easy to say that as a technicality, but try doing it in reality. that's a very
long, very difficult road.
4 of 5
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Online social networking: defamation

Did you know that posting statements or pictures online to harm a persons reputation may be
against the law? This is called defamation and is banned behaviour on social networking sites.
What is defamation?
Defamation is where a person intentionally states or spreads information about another person to
cause others to think less of that person. Whether a particular statement is considered defamatory
will depend on the circumstances of each situation, but as a rough guide a defamatory statement
can be anything that:
Makes someone the butt of jokes;
Damages their reputation;
Causes others to avoid them.
What are some forms of defamation?

Defamatory material can take many forms including novels, poems, cartoons, paintings and songs.
More recently things that have been said on the internet have also been considered to be
defamation. It does not matter what form you use to state or spread defamatory comments, it is
against the law.
Is defamation illegal?
Yes, defamation using any form is illegal. If you defame someone, and youre found guilty of
defamation, civil fines usually apply. This means that the Court will order you to pay damages
(compensation) to the victim. The amount the Court orders you to pay will vary depending on the
circumstances. Under some special circumstances, defamation can be treated as a criminal matter.
What is cyber defamation?

Cyber defamation is any defamation on the internet. Just like other types of defamation, cyber
defamation is also against the law. An example of cyber defamation is when someone sends an
email saying hurtful things about you to someone else or if they post hurtful and untrue things
about you on the internet.
What can I do if I have been defamed on the internet?

Contact the website administrator such as Facebook, Twitter or YouTube and report what has
happened and request that the information be taken down.
The Court has recognised cyber defamation to be the same as other forms of defamation and you
can take action against a person who defames you over the internet. Even if they did not name
you, as long as there is enough information for other people to recognise that the defamatory
material is about you, then it is enough. If you feel that you have been defamed by comments,
photos or other material written about you online you can contact the website administrator and/or
the police.
What to do if you have defamed someone over the internet?

If you have defamed someone over the internet, it is not too late to do something about it. Firstly,
you should remove the material immediately. If the person you have defamed made a written
complaint that you have defamed them, you can offer to help and improve the situation within 28
days.
Online social networking: defamation - Legal Aid NSW
1 of 2
Sometimes you might find that you become involved in defaming someone without meaning to. For
example, if someone sends you a defamatory email about someone else and you forward it on to
other people. In that case, even if you were not the original author, you may still be responsible.
Also, be aware that because emails can be circulated so easily, there might be more people getting
the email than you originally intended.
Example
Nicole is 16 years old and was doing a part-time apprenticeship at a local hair salon. Although she
liked her job, Nicole wanted to find a salon that could employ her full time. After she started her
new job, Nicole found out that her old employer had been sending emails to clients saying that
Nicole was fired because she stole hair products from them. When Nicole saw this, she was angry
because the things her previous employer had emailed were not true. Nicole was worried that her
reputation as a good employee had been damaged.
If Nicoles previous employer deliberately told clients things that were not true about Nicole and this
damaged Nicoles reputation, then Nicole has been defamed. This is against the law and Nicole can
take legal action against her former employer.
Want more information?

For FREE legal advice and information you can send a Lawmail at www.lawstuff.org.au.
The Cybersmart website at www. cybersmart.gov.au has lots of useful information on how to be
cybersmart and protect your digital reputation. If you want to talk to someone about cyberbullying,
you can call the Kids Helpline on 1800 55 1800 or visit their website at
www.kidshelpline.com.au.
This information was last reviewed on 10 April 2012. This factsheet provides information about the
law in NSW. It does not provide legal advice. If you need advice, or if you would like information
about the law in a state or territory other than NSW, please send us a Lawmail at
http://www.lawstuff.org.au.
National Children's and Youth Law Centre, and the Children's Legal Service of Legal Aid NSW, 2010. You may copy, print, distribute, download and otherwise
freely deal with this work for a non-profit purpose provided that you attribute the National Children's and Youth Law Centre and Legal Aid NSW as the owners.
To reproduce or modify the work for any other purpose, you need to ask for and be given permission by the National Children's and Youth Law Centre.
In-kind design provided by UTS: Shopfront. Design by morethanhuman.com.au.
Online social networking: defamation - Legal Aid NSW
2 of 2
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Home (http://www.techlife.net) Online Defamation: What you need to know
Online Defamation: What you need to know

0
(http://www.techlife.net/2013/05/online-defamation-what-you-need-to-know.html)
Shock and disbelief. This was Julie Posettis reaction to discovering that the Editor-in-Chief of The Australian was suing her for
defamation. The substance of his complaint? Three tweets.
While covering another journalists presentation at an academic conference in 2010, Posetti live-reported the event on Twitter,
quoting and summarising the speakers description of working conditions at The Australian and claims regarding the Editor-in-Chief,
Chris Mitchell. Mitchell objected to the tweets in his paper the next day, calling the claims a lie and threatening to sue Posetti for an
attack on his character. Widely reported as the first Australian Twitter defamation action, the controversy took many in the journalist
community by surprise, not the least of all Posetti herself.
My human reaction was shock and disbelief, I suppose, she says. I think there was also the sensational element that
came from this possibly being the first incidence of a Twitter defamation case. But I maintain what I felt then, which was from my
point of view, I was doing the sort of work that I had done on a daily basis as a radio news reporter going to a conference, reporting
what I heard, doing so I believe fairly and accurately in what is essentially a real-time environment.
Online Defamation: What you need to know - TechLife
1 of 11
Julie Posetti photo credit: Tim Anger
As an experienced journalist and a journalism lecturer at the University of Wollongong (one whose PhD focus is The Twitterisation of
Journalism, no less), Julie Posetti would have possessed a professional understanding of issues surrounding defamation liability,
which is more than you can say for the majority of Facebook and Twitter users sharing content online. But that expert knowledge
wasnt able to prevent her from being hit with a headline-making lawsuit (later dropped), highlighting the scale of exposure where
social media meets the law.
Social media = a billion voices

In October 2012, Mark Zuckerberg made a personal announcement on his social network that in September, Facebook had reached
more than one billion monthly active users. As the Facebook co-founder put it, Helping a billion people connect is amazing,
humbling and by far the thing I am most proud of in my life. In the same year, Twitter hit over 500 million accounts, Time magazine
used Instagram to officially document the effects of Hurricane Sandy, and relative newcomer Pinterest crept into the top 50 most
visited web sites for the first time. Social technology, no matter which way you look at it, is a hit.
But despite the rampant growth of social media and networking services, what many users fail to grasp is that communications
shared in public on the net can potentially leave them exposed to legal liability for defamation. If you say something in public be it
on a blog, a forum, on Facebook or Twitter and it falsely injures the reputation of another, you could easily be sued, provided a
valid defence to what you wrote doesnt apply. In the eyes of the law, social media users, bloggers and online commenters are all
publishers, regulated by historical defamation laws that largely applied only to journalists and traditional media interests like
newspapers and magazine companies. This isnt to say that defamatory communications are always pursued in the courts, but the
ease of our contemporary access to digital publishing is an unprecedented development in the history of human communication, and
the risk of legal liability is closer than most think.
Mark Pearson, Professor of Journalism at Bond University.
Its unlikely, its a lightning-strike possibility, but then, so is much of defamation action traditionally in the print media, says
Mark Pearson, Professor of Journalism at Bond University and author of Blogging and Tweeting Without Getting Sued: A Global
Guide to the Law for Anyone Writing Online. There are countless more quantities of defamation happening and published than
are actioned. Its always been a drop in the ocean. I can open almost any newspaper and see potentially defamatory material,
particularly as I get away from the mainstream publishers and into suburban and regional press. Theres all sorts of litigious material
being published that doesnt necessarily have a defence. But people either dont know, dont care or cant afford to pursue it, and
thats the same online now, with gigabytes of such material out there, only some of which is targeted and actioned.
2 of 11
So while the chances of being sued are slim, the bigger issue is that so many of us are unwittingly committing these civil wrongs in
the first place. If youve ever falsely criticised a friend, colleague or public figure and impugned their reputation in public, its
theoretically actionable. I dont think there are very well-established levels of media literacy in Australia, and I do think that poses
a problem when weve got the democratisation of publishing platforms and the capacity to publish, but we dont have widespread
capacities in terms of media literacy and particularly social media literacy, says Posetti.
Mark Pearsons book: a handy read for anyone who wants a comprehensive overview of the legal issues posed by internet
communications. And written in plain English to boot.
And its not just a problem that affects social media users in the mainstream. Often either lawyers or what you might call
academics or intellectuals let their guard down as well, Mark Pearson says. I think all of us, because of the very nature of
social media being engaging in a conversation online, let our guard down because we slip into a conversational tone where were
talking with a group of friends and psychologically we fall into that and forget the safeguards that we use when formally broadcasting
or writing a written publication. So the ordinary person, the lay person, is really up against it if they have no background in this area
at all.
Hundreds of jurisdictions
In simpler times, if you defamed someone, the litigation of the matter could be considered a relatively straightforward affair. The court
would look at where the defamatory communication was published and the laws of that jurisdiction would apply in determining
whether the defaming party was to be held liable. These days, things are a little more complex. Communications on the internet are
effectively published everywhere; defamatory material contained in a blog or social media update could be downloaded virtually
anywhere at any time, potentially exposing the publisher(s) in question to the laws of several hundred legal jurisdictions worldwide.
3 of 11
In 2002 the High Court of Australia handed down a landmark decision in Dow Jones v Gutnick, in which the Australian respondent
Joseph Gutnick was held to be able to sue for defamation in his home state of Victoria where his reputation existed over a
defamatory article published online by a magazine based in the United States. Legal representation for the appellant argued that the
place of publication was the US, but the High Court ruled that in the case of material published on the internet, publication rather
occurs wherever the material is downloaded.
According to Justin Castelan, a Melbourne-based barrister and author of the legal blog Defamation Watch
(http://defamationwatch.com.au/), the Gutnick decision had a transformative effect on defamation law and not only in Australia. It
was a ground-breaking case. The High Court said, when a person is suing, if their reputation is in Victoria theyre entitled to sue in
Victoria, provided people have read [the defamatory communication] in Victoria, because the crucial point is that the place of
publication is where it is read and understood. While the case isnt strictly authority anywhere outside Australia, the decision is
frequently referred to internationally, especially in common law countries such as Canada and England.
I think its fairly widely accepted throughout superior courts in the Western world that people are responsible wherever the
material is downloaded, Mark Pearson says. I dont want to be a scary bear telling everybody not to use social media. Im an
active user myself and I think there are huge benefits. And I certainly am not arguing that if somebody publishes something theyre
going to get dragged across the world to face court in some remote country. But I think its a reasonable point to make given the
amount of international travel people do today, that people should think twice, certainly before publishing something not just
defamatory but that may well be illegal in a travel destination.
The latter point in particular is worth extra emphasis. While the gist of judicial reasoning in decisions like Gutnick is that defamation
liability could theoretically attach wherever defamatory material is downloaded, most of the time Australians are effectively safe from
actions for civil defamation in foreign jurisdictions. Unless you possess commercial assets or interests in another country, its
financially impractical for a defamed party to trouble with the expense of suing you there. However, if you end up travelling to another
country where a legal action has been brought against you, you could in all reality be arrested at the airport.
The two that spring to mind because of their popularity for travel for Australians are Thailand and Vietnam, says Pearson,
both of which have an incredibly poor track record with free expression and have been quite active in pursuing and jailing people
who breach publication guidelines. Examples of the risks travellers face include the case of US-based lawyer and blogger
Gopalan Nair, who was jailed in Singapore for criticising a judicial officer, and Harry Nicolaides, an Australian who was jailed in
Thailand for writings deemed critical of the monarchy.
Old laws, new interpretations

While much classic case law regulating defamation hails from a technologically distant era (a significant legislative overhaul of
Australias defamation laws in 2006 didnt seek to address issues posed by web communication), case by case, common law is
slowly adjusting to the legal challenges of social media.
Judges are applying the traditional laws to new fact situations, and those new fact situations become law themselves. Thats the
way its always happened, and its often been a mistake to write certain new technologies into the law, into legislation, because these
technologies can change quite rapidly, Pearson says. What we have is a whole series of cases throughout the world,
particularly throughout our US/British legal system, that would serve as precedents for our courts, and some within Australia itself.
So in recent months, the last year or so, weve had important decisions applying the law or breaking new ground with social
media.
4 of 11
Examples include ACCC v Allergy Pathway and Clarke v Nationwide News, two cases in which the Federal Court held that a party
could be liable as a publisher for comments made by fans on its Facebook page due to being made aware of the posts and not
removing them (significant decisions for anybody who has responsibility for a web site, blog or social media page). Most recently, the
Victorian Supreme Court held in Trkulja v Google that Google could be held liable as a publisher for defamation communicated by its
search engine results, having failed to act on requests to take down the defamatory material.
For the law of defamation, the common law, the question of publication has always been very broad, much broader than people
would realise, says Justin Castelan. Lets say you wanted to sue for an article written in the newspaper. You can sue the
author of the article, the journalist, the publisher of the newspaper and the editor, because theyre all deemed to be publishers.
Strictly speaking, you can even sue the local newsagent, who is also deemed to be a publisher for selling the defamatory
communication, although newsagents can often claim the defence of innocent dissemination.
Damage Control
In light of the above, it might seem disturbingly easy to defame people on the internet and social media and it is but with the right
approach, you can avoid putting yourself in hot water. Strange though it might sound, theres considerable legal wisdom in the
childhood lesson: if you dont have anything nice to say, dont say anything at all.
I like to take a Zen approach to this, Mark Pearson says, and suggest that people think very carefully about what theyre
going to be saying online, not be impulsive or engage in social media if theyre under the influence of some substance, and to pause
and think, If this was being said about me or about someone that I really respect, what would I think of them as a result of it? And
normally you would adapt what you were going to write or be content to have drafted it and not sent it, just so that youve at least
expended that negative energy but havent taken the legal risk by firing it off.
If youre an online writer or an avid social media user, its also worth having an appreciation of the defences to defamation (see below
for more info). If you can demonstrate that one applies to what you published, you wont be in any trouble. Tell the truth. Thats a
good start, says Justin Castelan. The defences to defamation claims, theres a whole raft of them. The basic ones are truth,
fair comment or honest opinion. For those falling into the content manager category (people who run web sites, blogs or social
media pages where others have the ability to post comments), be aware that you can be held liable for what others write or post on
your page. If you see something that could be considered legally dubious, dont hesitate to delete it, especially if someone requests
you to do so.
If someone is threatening legal action, people should always take legal advice, Mark Pearson says. Even though that
might be expensive, it can finish up being a lot less expensive than having some sort of court order against you. If you yourself
believe that you have actually done the wrong thing, and that you have said something false or you cant substantiate it in any way
and theres no actual legal action threatened, then you should just apologise and remove the material. But if the person is
threatening legal action, you would first take legal advice before apologising, because lawyers might suggest the best framing of any
words of an apology.
On the other hand, if you dont feel that youve done anything wrong (and have received legal advice regarding defences), issuing an
apology might not be something youre interested in. Despite having been on the receiving end of Australias first high-profile Twitter
defamation lawsuit, Julie Posettis views on the benefits of social media, and what she calls its democratising effect, remain
unchanged.
It has given people who have felt misrepresented, underrepresented or maligned by the mainstream media an opportunity to
correct the record, to go directly to journalists and to express their consternation, or to try to redirect journalists through example. Its
enabled one-to-one communication on a much broader scale between citizens and politicians who are active on the sites that were
talking about here, mainly Facebook and Twitter, but also through blogs.
And its done the same for consumerism: the consumer watchdog effect of social networking sites. The ability for dissatisfied
customers to effect change; I think thats pretty extraordinary as well. Even right down to the implications for the law, as it currently
exists, in reference to governing behaviour. Theres an opportunity for pushback there, with individual citizens campaigning on a
range of issues. For me, the positives far outweigh the risks, but again there are significant risks and pitfalls which were still working
our way through.
Online defamation 101:
5 of 11
1. You are a publisher

If you post defamatory material in public online or via social media, in the eyes of the law you could be liable as a publisher.
Defamation law traditionally focused on journalists and media companies as publishers, but the advent of the internet and social
media in particular has made it much easier for ordinary people to legally defame others. A huge amount of defamation occurs every
day, but only a slim percentage of cases are actioned. Check out The elements of defamation further down this article.
2. Youre liable where youre downloaded

In Australia and other countries, a recurring legal principle is that liability for defamation exists where the defamatory material is
published, and in the case of internet publication, this increasingly means wherever youre downloaded. There are hundreds of legal
systems in the world and its possible you could be sued in many of them for any defamatory comment you post via the web or social
media. Practically speaking, this wont be a problem for most resident Australians, but for businesses with interests in other countries
or frequent overseas travellers, its worth bearing in mind.
3. Publisher is defined broadly

In addition to the person who writes a defamatory communication, publisher liability also extends to anyone who reproduces it (so
think twice before you hit that Retweet button). Historically, if a defamatory article was published in a newspaper, the journalist, the
editor, the publisher and even the newsagent could variously be held liable as publishers. These days, the same broad liability is
being held to apply to web sites and Facebook pages, so if someone writes something defamatory on your web page, delete it or you
might be held liable.
4. Tell the truth

There are a number of defences to defamation, many of which revolve around concepts of truth and the public interest. Its worth
remembering that defamation is concerned with false statements about a party. In short, if what you say is true (and you can
demonstrate the truth of it), then you have a stronger defence against defamation. Check out Defences to defamation further down
this article.
5. Get legal advice

Above all, if youre seriously concerned that you might have defamed someone and legal proceedings are commenced, engage a
lawyer. This article summarises some of the law surrounding online defamation but its not legal advice in itself. If youre
panicking its a case by case proposition, but get legal advice. Thats the answer, says barrister Justin Castelan. If you get
a letter of demand from someone, go to a lawyer and take it from there.
The elements of defamation

Defamation is defined as communication to third parties of false statements about a person that injures the reputation of the person
or deters others from associating with the person. In its simplest form, it means to spread a demeaning report about a party that does
them harm.
For defamation to occur, the plaintiff (the person who claims to have been defamed by another) must be able to prove that three
things have taken place. First, there must have been a communication published to another (a third party, ie. someone other than the
6 of 11
plaintiff). Second, the communication in question must identify the plaintiff (not necessarily by directly naming him or her, but by
providing sufficient detail that the plaintiff can be identified). Third, the communication must defame the plaintiff. This third element is
satisfied if the published communication exposes the plaintiff to ridicule, lowers the plaintiffs reputation in the eyes of other members
of the community, causes people to shun or avoid the plaintiff, or injures the plaintiffs professional reputation.
Defences to defamation
Once all three of the elements of communication, identification and defamation have been demonstrated, its still possible to defeat a
defamation action provided the defendant can demonstrate a valid defence, which legally justifies the publishing of the
communication for reasons of public interest. There are a number of these defences, any of which the defendant must prove. A
non-exhaustive list is provided by the Defamation Act 2005 (NSW), mirrored in other states, including: justification (the defendant
proves that the defamatory imputations are substantially true); contextual truth (among the defamatory imputations are contextual
imputations that are substantially true); absolute privilege (protected comment issued during parliamentary and judicial proceedings);
public documents (the defamatory material is contained in a public document); fair report of proceedings (the defamatory material
was reported in proceedings in the public interest); qualified privilege (related to public interest); honest opinion (opinion related to
public interest, as opposed to a statement of fact); innocent dissemination (distributing without awareness of defamatory matter); and
triviality (plaintiff unlikely to sustain harm).
Australian defamation legislation

The Australian states and territories enacted uniform defamation legislation in 2006. In NSW, the law is the Defamation Act 2005
(NSW), which has its counterparts in the other jurisdictions. While not entirely uniform, this new legislative framework did help to
streamline a much more disparate set of statutes in operation prior to 2006. Like all Australian legislation and much case law, the
uniform defamation acts are freely viewable online at the Australasian Legal Information Institutes (http://www.austlii.edu.au/) web
site.
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Landmark case awards damages for Twitter defamation

Samantha Donovan reported this story on Wednesday, March 5, 2014 12:42:00
PETER LLOYD: Twitter users are being urged to re-think what they say after the ruling in a landmark defamation case.
A New South Wales teacher has been awarded just over a $100,000 after a district court judge found false allegations had been made about her online.
It's believed to be the first time a Twitter defamation case has gone to a full trial in Australia.
Samantha Donovan reports.
SAMANTHA DONOVAN: Teachers are no strangers to criticism.
But after Andrew Farley took to Twitter and Facebook to make his thoughts known about a teacher at his old school, Australian law entered new
territory.
Sydney barrister Sandy Dawson acted for the teacher, Christine Mickle, who took her case to the District Court of New South Wales.
SANDY DAWSON: She was a very popular and very well-regarded teacher. The comments that were published were very, very critical and really quite
nasty. In particular she was very upset by the suggestion that the defendant's father, who had been a teacher at the school, had left the school in some
way because of something that the plaintiff had done. The teacher took great umbrage at what had been said, was very badly affected by it and because
of the social media which the defendant used to communicate what he wanted to say, the publication spread very quickly and became very well known
very quickly in the community.
SAMANTHA DONOVAN: Sandy Dawson says the remarks of Judge Michael Elkaim should serve as a warning to Twitter and Facebook users.
SANDY DAWSON: The judge stressed at the end of the judgement that defamatory publications made on these forms of social media do spread and he
said they are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of
this type of communication and I have taken that into account in the assessment of damages that I've previously made.
So you can see that courts are well aware of the way in which social media publications spread.
SAMANTHA DONOVAN: Do you think because they're fairly new media, Twitter in particular, that people are taking a little while to get their heads
around the fact that they can quite easily defame someone?
SANDY DAWSON: I think that's right. I think people look at Twitter and Facebook as almost an area that's immune from legal regulation. They think of
these publications that they make as temporary or disposable publications, which once they're made disappear into the ether much like a private
conversation over a cup of coffee. But the reality is they are communications in a permanent form and because of the way social media works and the
whole point of it is to communicate and to react and respond to other people's communications; an initial publication can spread like wildfire and cause
immense damage to somebody particularly whereas was the case here, the statements are just simply untrue.
SAMANTHA DONOVAN: Mr Dawson believes it's the first case in Australia to award damages for defamation on Twitter and Facebook.
SANDY DAWSON: It's a warning if you like to users of social media that the consequences of posting something or tweeting something are the same as
if you put it in a newspaper or broadcast it across a television network and the judge has significantly in this case taken into account the nature of social
media in assessing damages.
The compensatory damages award of $85,000 is a pretty significant amount of money for publications on Twitter and Facebook that most people would
regard as immune from legal regulation.
SAMANTHA DONOVAN: Do you think we're going to see many more defamation cases flowing from Facebook and Twitter communications?
SANDY DAWSON: Look, I think that's inevitable because it's the way people now communicate. I think there's a chance that the number of cases will,
in fact, increase because a lot of the things that people would say to each other in conversation, which by their nature are very difficult to trap, in the era
of social media, those conversations are taking place in written form and they are in permanent form for the purpose of the law of defamation.
PETER LLOYD: That's the Sydney barrister Sandy Dawson ending Samantha Donovan's report.
2010 ABC
2014 ABC
The World Today - Landmark case awards damages for Twitter de...
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Australia: Defamation online: legal perils of social media postings

Last Updated: 26 February 2014
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The tweet that cost $105,000

Michaela Whitbourn
Published: March 6, 2014 - 9:33AM
A NSW school teacher has made legal history after a former student was ordered to pay $105,000 for defaming her on Twitter and Facebook.
In the first Twitter defamation battle in Australia to proceed to a full trial, District Court judge Michael Elkaim ruled that former Orange High School student Andrew Farley should
pay compensatory and aggravated damages for making false allegations about music teacher Christine Mickle.
Judge Elkaim said the comments had had a "devastating effect" on the popular teacher, who immediately took sick leave and only returned to work on a limited basis late last year.
"When defamatory publications are made on social media it is common knowledge that they spread," Judge Elkaim said in an unreported judgment in November.
"They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication."
Mr Farley, who was 20 at the time of the judgment, is the son of the school's former head of music and arts, who was described as a "gentle man who had a number of health issues".
Young Mr Farley graduated from high school in 2011 and had never been taught by Ms Mickle.
In November 2012, he posted a series of defamatory comments on Twitter and Facebook about Ms Mickle, who took over his father's job on an acting basis after the senior teacher
left in 2008 for health reasons.
"For some reason it seems that the defendant bears a grudge against the plaintiff, apparently based on a belief that she had something to do with his father leaving the school," Judge
Elkaim said.
"There is absolutely no evidence to substantiate that belief."
Judge Elkaim said his impression of Ms Mickle in the witness box was "of a very honest woman who had been terribly hurt both by the comments in general but perhaps more
particularly by the suggestion that she may have been responsible for any harm, ill health or effect of any of her actions on the defendant's father."
There was evidence that, in the absence of the comments, the senior teacher would have continued teaching as she had before "until she reached the age of 65 which is in about seven
years' time".
Judge Elkaim ordered Mr Farley to pay $85,000 in compensatory damages.
He also ruled that the young man's conduct in response to the case warranted an additional $20,000 in aggravated damages.
Mr Farley ignored a letter from Ms Mickle's lawyers in November 2012. He removed the comments and apologised "unreservedly" only after they wrote to him again in December.
Judge Elkaim said the apparent sincerity of the apology was contradicted by Mr Farley when he attempted to argue in his defence that the comments were true.
He said the defence had "no substance" and was later struck out.
"The defence of truth when it is spurious is particularly hurtful to a person who has been the subject of such unsubstantiated allegations," Judge Elkaim said.
The judge added that Mr Farley appeared to have "abandoned his interest in the proceedings" and did not appear at the trial.
The decision is the first defamation case involving Twitter to go to trial, although earlier decisions have considered defamatory comments on Facebook.
Liberal pollsters Mark Textor and Lynton Crosby's Federal Court case against former federal Labor MP Mike Kelly is still at the pre-trial stage, while prominent columnist and
author Marieke Hardy settled a case in 2011 for erronesouly "naming and shaming" a Melbourne man on Twitter as the author of a hate blog.
Media law expert David Rolph, an associate professor at the University of Sydney Law School, said: "This case just reinforces that even private individuals are subject to defamation
law on social media and should be careful about what they say."
This story was found at: http://www.smh.com.au/technology/technology-news/the-tweet-that-cost-105000-20140304-341kl.html
Print Article: The tweet that cost $105,000
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Things people say

Related Links
What if someone is gossiping about me, or telling embarrassing old stories about me or defaming me?
Unless the gossip or old stories amounts to defamation of you then you cannot take legal action against gossip.
What is defamation?
No simple definition exists but generally you have been defamed when words have been spoken or written which:
injure your reputation in the eyes of ordinary people in the community
injure you in your trade or profession (eg lead you to get less work) or
are likely to result in you being shunned, avoided, made fun of, or despised.
Defamation occurs when somebody speaks in a defamatory way to another person or when defamatory material is published. Publication can include on the internet, for
example on Facebook. It is only defamation if the person who receives or hears the defamation understands that it is defamatory.
A claim for defamation is a complex, time consuming and expensive legal matter.
What can I do if I am harassed, threatened or defamed online?

You do not have to put up with being harassed or threatened or defamed online. You should take action to try to stop it.
You can ask the person to remove the comments or information you do not like. If they refuse you can contact the social networking site and ask them to remove the
information. If you are a school student and the person who made the comments is also at your school, you can tell a teacher, the principal or your school counsellor. They may
be able to help have the information removed.
Some harassment or threats may break criminal laws. You may have grounds for getting a restraining order- see Misconduct restraining orders - information and
Violence restraining orders -information. Also see below under the heading What can I do if I am receiving threats or verbal abuse?
You should get legal advice if you believe you have been defamed online.
What if I just want some information about me posted on a social networking site removed?
If there is a photo or information that you want removed you can try what is suggested in paragraph two under the previous question.
Are there defences to defamation?

There are defences to defamation. A defence is a legal reason why the statements can be made without being defamatory. For example:
Privileged comments or publications are not defamatory. Privilege occurs in situations when the law protects people's rights to express themselves such as a speech in
parliament, or statements made in a court of law.
Some situations are partly protected by privilege, eg reasonable comments about work performance as a referee.
It is a defence to publication if it can be proved the defamatory material is substantially true.
The law in Western Australia encourages resolution of disputes about publication of defamatory material without going to court.
Even if defamation is proven in a court it does not mean the court will award you much or anything in damages. Get legal advice before starting any court action.
Do time limits apply to take legal action?
Yes strict time limits apply. Get legal advice.

Can defamation be a criminal offence?
In Western Australia there is an offence of criminal defamation to cover the publication of some defamatory matter about another living person.
What can I do if I am receiving threats or verbal abuse?

You should report threats of violence, whether made over the phone, in writing or in person, to the police.
In some circumstances where you are being threatened or suffering abuse you may be able to take out a misconduct restraining order or a violence restraining order.
For more information see Misconduct restraining orders - information or Violence restraining orders - information.
What if the abuse is racial?

The information under the previous question may apply if the abuse includes threats of violence.
If it happens in the areas of employment, education, and/or accommodation it may be racial harassment that is unlawful under the Equal Opportunity Act 1984 (WA). It is racial
harassment when a person threatens, abuses, insults or taunts another person because of their race, and that other person is disadvantaged, or has reasonable grounds for
believing that they will be disadvantaged, by taking objection.
If the abuse is conduct intended or likely to incite racial animosity or racial harassment it may be a criminal offence.
What can I do if someone is using offensive language around me?

As it is an offence to use insulting, offensive or threatening language in public you can call the police.
If it is being used at home you may be able to get a violence restraining order. Get legal advice.
Being treated fairly - Things people say
1 of 2
For more information on unlawful racial harassment contact the Equal Opportunity Commission WA
on (08) 9216 3900 or 1800 198 149.
Contact the Department of Education WA on (08) 9264 4111 or go to its website for information for parents and students on bullying at school.
At the DBCDE website you can download a Cybersafety Help Button free application. It provides
internet users, particularly children and young people, with easy online access to cybersafety information and assistance available in Australia. It offers counselling,
reporting and educational resources to assist young people deal with online risks including cyberbullying, unwanted contact, scams and fraud, and offensive or
inappropriate material.
Go to Bullying. No Way! an educational website for Australian school communities and the general public.
The Australian Human Rights Commission (AHRC) and ReachOut.com have developed factsheets for young people on how to deal with bullying, including
cyberbullying, workplace bullying, and being supportive for people who are being bullied. These are available online. The AHRC also has a complaint handling service
that may investigate complaints of discrimination, harassment and bullying. It can be contacted on 1300 656 419.
The ThinkUKnow and Cybersmart websites have information for parents, carers, teachers and young people about internet safety and dealing with cyberbullying.
See also Privacy and freedom of information.
Visit the The Line an online magazine designed by young people for young people with information on respectful relationships.
Visit the Lawstuff website (click on WA) for information on young people's rights on a range of topics.
Last reviewed: 22/03/2013
Last Modified: 22/11/2013
Disclaimer
The material displayed on this page is intended for information only. If you have a legal problem, you should see a lawyer. Legal Aid Western Australia believes that the information provided is accurate,
however does not accept responsibility for any errors or omissions.
Being treated fairly - Things people say
2 of 2
News
Herald Sun
News
Defamation laws deliver a strange sort of justice

by: James Campbell
From: Sunday Herald Sun
March 09, 2014 12:00AM
IN NSW, the worlds of Twitter and Facebook have been rocked by Australias first defamation payout for injudicious words dispatched into
cyberspace.
Last November (for some reason the case was only reported last week), District Court Judge Michael Elkaim awarded $105,000 to Orange High School music
teacher Christine Mickle, who had taken exception to Facebook posts and tweets from a former pupil at her school, Andrew Farley.
What he said about Mickle was not recorded in the judgment but it is clear Farley didnt help his cause by apologising for his remarks, then attempting to justify
them as being true before finally withdrawing them unreservedly.
Nor is the judge likely to have been impressed by his no-show at the trial.
But even allowing for all that, it strikes me that $105,000 is a lot of sugar to be awarded for being defamed on a Twitter account that, if Farleys later interview is
to be believed, had only 60 followers, and a Facebook page with only 50 friends, especially as one imagines the two groups were largely comprised of the
same people.
Last weeks media reports about the case told how it was the first Twitter and Facebook defamation matter to make its way to trial and made much of the
mouth-watering size of the damages awarded. But what interested me was that the matter had made its way to court even though it must have been clear to
Mickle that even if she won, she would have little chance of seeing a cent as Farley, now 20, says he is bankrupt.
If that is the case, not only will Mickle not see her damages, it is likely her lawyers will be pressing down hard upon her for their fees. So aside from the
satisfaction of having her reputation cleared by the judge, it is hard to see what she hoped to achieve.
Impecunious parties to defamation cases are not unusual indeed from my conversations with defamation lawyers I get the idea they are extremely common
but usually it is the party doing the suing who has no money, not the defendant.
This is because courts are extremely reluctant to grant orders for security for costs in defamation cases that is, showing you will be able to pay the other
sides legal bills if your case is unsuccessful.
Apparently the courts take the view that everyone is entitled to their day in court regardless of their ability to pay. Which is tough if you are stuck with a legal bill
you cant recover after defending yourself in court.
It also seems unfair that not-for-profit groups can make use of defamation laws and then dissolve themselves without having to pay a penny if the case goes
against them. This last quirk of our legal system means that many defendants in defamation cases have no choice but to settle the proceedings and pay out
when they are sued regardless of whether they would win if it ever reached court.
Take, for example, the case of the Victorian Environment Minister Peter Walsh, who has just written his second cheque to an environment group displeased at
things he had said. Or rather it is we the taxpayers who have written the cheque for his words.
Perhaps the environmentalists had a point, maybe the greenies had a snowflakes chance in hell of winning. It didnt matter. Even if Walsh, with the backing of
the Victorian taxpayer were vindicated in court, all that would have happened is that we would be left with a giant legal bill.
One of the environment groups that Walsh has paid already has a giant legal bill hanging over it from an earlier failed case against VicForests over
Leadbeaters possum. It is easy to argue that Walsh ought to have paid up himself, but that is a different debate. It doesnt change the fact that it is manifestly
unfair that one side stood to lose thousands of dollars whatever happened while the other didnt.
What is even more unfair about the law as it stands at the present is that if a green group were to wrongly accuse a corporation of some beastly practice that
were to cause it to lose business, it wouldnt be subject to defamation law. In the eyes of the law in Australia, a tiny protest group may have a reputation that
may be defamed, but not, say, McDonalds.
As a journalist I would prefer there were no defamation laws, as is effectively the case in America, but if we are going to have them, then we need to find a way
to make them fairer to both sides.
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Pies player spared jail over nightclub attack
Defamation laws deliver a strange sort of justice | Herald Sun
1 of 2
7 March 2014, 3.03pm AEST
Teacher defamation highlights social

medias legal perils
AUT HO R
David Rolph
Associate Professor of Media Law at University of
Sydney
Social media users should be careful about posting nasty comments online, after a NSW teacher
successfully sued a former student at her school for defaming her on Twitter. shutterstock
Last November, a young man was ordered by a NSW court to pay A$105,000 in damages for
defaming a teacher at his former school on Twitter. The decision, which only came to light
earlier this week, should serve as a reminder to all users of the legal risks involved in using
social media.
Judge Michael Elkaim ordered Andrew Farley to pay Christine Mickle $85,000 in
compensatory damages and $20,000 in aggravated damages for a number of tweets Farley
sent to his followers. The judgment does not repeat exactly what was said about Mickle to
reduce any further damage to her reputation.
The case is the first Twitter defamation battle to be litigated to final judgment in Australia. It
highlights a challenge for future reform of Australian defamation laws to make them more
protective of free speech, and not just in the online environment. As it stands, defamation law
in Australia is pervasive and is not as protective of free speech as some people assume.
This is not the first time that someone has sued for defamation arising out of a tweet in
Australia. Media personality Marieke Hardy settled a defamation claim with Joshua Meggitt
after she wrongly identified him as the person behind a hate blog directed at her.
Prominent Liberal Party
pollsters Lynton Crosby and
Mark Textor have also started
defamation proceedings in the
Federal Court of Australia
against former Labor MP Mike
Kelly over a tweet accusing
them of engaging in push
polling.
Twitter defamation cases are
starting to become more
common around the world. In
the UK, the late Lord
McAlpine sued Sally Bercow,
the wife of the Speaker of the
Liberal pollsters Lynton Crosby (pictured) and Mark Textor

have launched legal action against a former Labor MP after
he sent a tweet the men argue was defamatory AAP
House of Commons, for a tweet that Justice Tugendhat found meant that McAlpine was a
paedophile who had sexually abused boys living in care. Bercow ultimately settled the
proceedings.
Former New Zealand cricket captain Chris Cairns successfully sued Lalit Modi, a former Indian
Premier League commissioner, in a UK court over a tweet which suggested Cairns had been
involved in match-fixing. Cairns was awarded 90,000 damages.
Teacher defamation highlights social media's legal perils
1 of 2
Cases of defamation by tweet are likely to increase in the years to come. Yet defamation law is
not foremost in peoples minds when they tweet. Twitter is an instantaneous form of
communication, and some people use it in a disinhibited way, at their own peril.
But Twitter is like every other
form of communication:
defamation law applies to it.
Defamation law does not just
apply to mass media, like
newspapers, radio and
television. It applies to every
form of communication, from
private conversations to
national broadcasts and
beyond. Whenever one
Defamation law applies to all forms of communications,
including social media www.shutterstock.com
person is talking about

another person in front of
other people, there is a risk of
defamation.
There is no minimum requirement as to the number of people you are speaking to before
liability for defamation can arise. Talking about a person to another is sufficient, so it does not
matter how many or how few followers you have on Twitter. Defamation can still occur,
although the number of followers you have will be relevant to how much damage to reputation
is done, and therefore how much you might have to pay in compensation.
Australian defamation law favours people suing, rather than people being sued. There are a
range of defences you can rely on if you are sued or threatened with a defamation claim. The
most important ones are truth and comment, but you have to prove what you have said is true
and, if you are making a comment, it has to be based on fact. In practice, these defences can
be difficult to establish.
Most people, of course, do not sue for defamation. But every communication carries a risk.
The risk can usually be managed because people ignore what has been said about them or
accept it as part of free speech. They may also be unaware of their rights or do not think it is
worth the time, energy and resources to pursue the matter in court.
Taking down the tweet and apologising usually works. Suing for defamation, like all litigation,
is expensive. But, as Mickle v. Farley shows, if people are sufficiently upset by what has been
said about them online, they do have legal rights they can exercise.
Towards the end of his judgment in Mickle v. Farley, Judge Elkaim makes the point that unlike
mass media outlets where you have circulation figures or the ratings to inform you it is
difficult to know with social media platforms how big the audience is.
Social media platforms like Facebook and Twitter make it easier for people to share or
retweet. This means that it is easy for people to spread defamatory material and also difficult
for people to know how far and wide their reputations have been damaged.
In the current environment, the best advice is to think before you tweet, bearing in mind that
what you tweet can be retweeted by your followers and can be found by online searches.
Teacher defamation highlights social media's legal perils
2 of 2
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Topics Defamation
Defamation
What is defamation?
If somebody publishes or spreads false information about you, your reputation might be damaged. This is
called defamation, and it is against the law. The law protects your reputation by not allowing false
information about you to be published. If it is too late, and the information has already been published,
you can sue the person who has defamed you and the court may award you damages (money) to
compensate you for the damage done to your reputation.
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When will something be defamatory?

First, at least one person (other than the person who is being defamed) has to see or hear the false
information.
Go to Lawmail
Second, the material must be such that if an average person saw or heard, it, that person would think
less of you. For example, it can be defamatory for someone to:
say you are dishonest or disloyal,
ridicule you,
accuse you of committing a crime, or
say you have a disease.
It may also be defamatory for someone to imply something negative about you.
What if you have been defamed?

You can sue the person responsible for defaming you, and you can also sue anyone involved in
publishing the false information (for example a publisher or a newspaper).
If the court finds that the information was false and defamatory, you may be awarded money to
compensate you for damage to your reputation, your hurt feelings and any economic loss you have
suffered because of the defamation.
If you believe that you are about to be defamed, you can bring an urgent court action to stop the material
from being published.
If you believe you have been defamed and you want to take the matter to court, you should get the
advice of an experienced lawyer, as defamation law is complicated.
What are other ways of dealing with defamation?

You can approach the publisher/author directly and request that they do not publish or write the
defamatory material.
If the material has already been published, you may:
do nothing,
ask for an apology, or
ask the publisher to publish an apology or clarification.
Publishing something which might seem defamatory wont be against the law if:
the information is substantially true,
the information is published with the consent of the person being defamed, or
the information wasnt very important and it is unlikely that the persons reputation will actually be
damaged.
This page was last updated October 2009.
What is defamation?
If somebody publishes or spreads false information about you, your reputation might be damaged. This is
called defamation, and it is against the law. The law protects your reputation by not allowing false
information about you to be published. If it is too late, and the information has already been published,
you can sue the person who has defamed you and the court may award you damages (money) to
compensate you for the damage done to your reputation.
Lawstuff Australia - Know Your Rights - - Topics - Defamation
1 of 2
When will something be defamatory?

First, at least one person (other than the person who is being defamed) has to see or hear the false
information.
Second, the material must be such that if an average person saw or heard, it, that person would think
less of you. For example, it can be defamatory for someone to:
say you are dishonest or disloyal,
ridicule you,
accuse you of committing a crime, or
say you have a disease.
It may also be defamatory for someone to imply something negative about you.
What if you have been defamed?

You can sue the person responsible for defaming you, and you can also sue anyone involved in
publishing the false information (for example a publisher or a newspaper).
If the court finds that the information was false and defamatory, you may be awarded money to
compensate you for damage to your reputation, your hurt feelings and any economic loss you have
suffered because of the defamation.
If you believe that you are about to be defamed, you can bring an urgent court action to stop the material
from being published.
If you believe you have been defamed and you want to take the matter to court, you should get the
advice of an experienced lawyer, as defamation law is complicated.
What are other ways of dealing with defamation?

You can approach the publisher/author directly and request that they do not publish or write the
defamatory material.
If the material has already been published, you may:
do nothing,
ask for an apology, or
ask the publisher to publish an apology or clarification.
Publishing something which might seem defamatory wont be against the law if:
the information is substantially true,
the information is published with the consent of the person being defamed, or
the information wasnt very important and it is unlikely that the persons reputation will actually be
damaged.
This page was last updated October 2009.
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Defamation in Australia
In this special additional chapter of The News Manual Online, we look at

defamation in the Australian context. Much of the text is an abbreviated
version of that in Chapter 69: Defamation -what you cannot do and Chapter 70:
Defamation - what you can do, so you might want to read those first. This
chapter, however, is more specific about the application of defamation laws in
Australia.
______________________________
What is defamation?
At its simplest, defamation is to spread bad reports about someone which could do
them harm.
The verb is to defame. You can defame someone if you say something false about them
which spoils their good reputation, which makes people want to avoid them or which
hurts them in their work or their profession.
To defame someone, you do not have to make up false things yourself. You might
defame a person by repeating or replaying words spoken by someone else, for example
an interviewee. It is no defence to claim that you were only quoting someone else. If
you print or broadcast something defamatory, you could be taken to court, along with
your producer, your editor or station manager and the person who said the words in the
first place.
1.
2.
3.
4.
5.
What is defamation?
Who can sue?
Defences
Malice
How is defamation punished?
Media law & ethics in Australia

1. Media law & ethics in
Australia - Introduction
2. Defamation in Australia
3. Contempt & court reporting in
Australia
4. Copyright in Australia
5. Vilification in Australia
6. National security and
anti-terrorism in Australia
Looking for something?

A quick way to find what you're
looking for on media law & ethics
in Australia is through the OZ
INDEX. Click here:
Before January 2006, defamation varied from state to state across Australia, but now
there are Uniform Defamation Laws which are similar across all states and territories.
The uniform laws adopted and adapted a number of statutory provisions from old laws
but still retain the basic principles of common law, which traditionally defines
defamation as:
The publication of any false imputation concerning a person, or a
member of his family, whether living or dead, by which (a) the
reputation of that person is likely to be injured or (b) he is likely
to be injured in his profession or trade or (c) other persons are
likely to be induced to shun, avoid, ridicule or despise him.
Publication of defamatory matter can be by (a) spoken words or
audible sound or (b) words intended to be read by sight or touch
or (c) signs, signals, gestures or visible representations, and must
be done to a person other than the person defamed.
If a person thinks that you have defamed them and takes you to court, they have to
prove that three of these things have happened:
That the words were capable of a defamatory meaning as understood by
ordinary members of society. Defamatory meaning could be anything which
harms the person, in their reputation, their business or in the way other people
treat them. The law does not say that the plaintiff must show actual proof of
being harmed; it is enough that the false statement could have led to harm.
That the words identify him as the person defamed. It is not necessary that he
should have been specifically named. If he can show the court that a reasonable
person would take the words to refer to him, he will probably have a good case.
Groups of people (such as small companies or not for profit associations) can
sue for defamation if they can demonstrate that the words identified them as a
group.
That the words or pictures have been published, that is heard or seen by a third
person. The first person is the one talking or writing (you), the second person is
the person being talked or written about (the plaintiff), the third person is
anyone else who may hear or read the offending matter (such as a reader or
listener). There is no civil defamation if the words, however bad or untrue, are
spoken or written only to the person about whom they are made.
^^back to the top
Who can sue?
Under the old system of individual state laws, almost anyone or any organisation or
company could bring an action for defamation. However, under the Uniform Defamation
Law, corporations with 10 or more employees cannot sue. However, be warned that
individuals or groups of individuals employed by or associated with that corporation such as company directors, CEOs or managers - can still sue if they are identified by
the publication.
Not-for-profit organisations can still sue for defamation, no matter how many
employees or members they have.
^^back to the top
Defences
It may seem that the laws of defamation are heavily against the media, but there are
several defences which you can use to keep out of court or, if you are taken to court, to
keep you from losing the case. Under the law, you as the publisher or broadcaster have
to provide the evidence to support any of the following defences.
Truth
Truth (which is also called justification) is probably the best defence. Formerly in some
states (such as NSW, Queensland, Tasmania and the ACT) truth was only a defence if
you could prove that a public interest was served by publishing the defamatory words.
This requirement has been dropped from the Uniform Defamation Law and now there is
1 of 4
a defence if the defendant

substantially true.
can
prove
that
the
defamatory
imputations are
Privilege and protected reports
The law recognises that there are times when there has to be complete freedom of
speech without any risk of claims for defamation. The two main examples are in
parliaments and courts. MPs speaking in parliament or people speaking in court
proceedings are protected from defamation by absolute privilege which means they
cannot be sued whatever they say or whatever their motive for saying it. Your reports of
such proceedings are usually protected by qualified privilege. Protection only usually
applies as long as your report is honestly broadcast for the information of the public or
the advancement of education and is reasonable. For example, does it distinguish
between suspicions, allegations and proven facts?
Because common law does not protect freedom of speech in other situations, the
uniform law has extended the protection of privilege to cover reports published
reasonably of a whole host of public events, functions and bodies ranging from
tribunals and commissions of inquiry to official documents kept as public records, such
as Hansard or land titles. Reports published reasonably of meetings of local councils are
usually protected, as are reports of public meetings dealing with matters of public
interest.
The acts of each state contain Schedules of bodies and publications to which absolute
privilege apply. In Victoria you can find the Act and Schedules at:
http://www.austlii.edu.au/au/legis/vic/consol_act/da200599.txt
The NSW Act is very similar at:
http://www.austlii.edu.au/cgi-bin/download.cgi/download/au/legis/nsw/consol_act
/da200599.rtf
Replies to a public attack may also be protected by qualified privilege, as long as the
reply is restricted to the specific matter of the original accusation.
Honest opinion
To use the defence of honest opinion you do not need to prove the truth of your
comment. In some cases this is not possible, especially if it is an opinion rather than a
fact. You only need to convince the judge or jury that your comments were your
honestly-held opinion and that it was:
clearly a matter of opinion and not a statement of fact and
it related to a matter of public interest and
it was based on proper material (i.e. substantially true or based on privileged
material)
The defence can be defeated if the plaintiff can prove that the opinion was not honestly
held.
Political debate
Two rulings by the High Court introduced a new defence based on what the judges saw
as an implied freedom of speech in the Constitution. The High Court decided (by a
majority decision) that in order for democracy to work, we must be allowed to say
defamatory things about people engaged in political debate without fear of being sued
if they prove to be untrue.
The defence is similar to the so-called "public figure defence" available in the United
States, but only applies in cases of genuine political discussions (which the High Court
left lower courts to define) and it cannot be used to defame people simply because they
are in the public eye.
The High Court in the Lange case further defined the conditions under which this
defence can be used. It said the matter must be on a government or political issue,
must not be motivated by malice (which we explain later) and publication must be
reasonable. To prove reasonableness, you will have to prove:
You had reasonable grounds for believing it was true,
You took proper steps to check the accuracy of the material,
Where practicable, you sought a response from the person defamed.
Innocent dissemination
Journalists occasionally defame someone without knowing or intending it. In such a

situation, you might be able to use the defence of innocent dissemination (sometimes
called unintentional defamation).
Ethically, broadcasters or publishers should be committed to correcting unintentional
mistakes which might do someone harm so will probably issue a suitable correction and
apology. Because publishing a correction and apology is admitting that you did defame
the person concerned, you must always get advice from the your organisation's lawyers
before doing it.
The Uniform Defamation Law has quite detailed provisions for settling defamation
matters through mutual agreement between plaintiff and defendant, without having to
resort to long and costly court cases. Your organisation's lawyers should be well
informed of these provisions for a reasonable settlement. Consult them.
Triviality
It is a defence if the defendant can prove that the circumstances of the publication
were such that the plaintiff was unlikely to sustain any harm.
The plaintiff agreed to publication
You cannot defame someone if they have given their consent for you to publish or
broadcast the defamatory material. Consent usually means that they said: "Yes, you
can use those words." This law stops people tricking journalists into publishing
defamatory material so they can later sue. You may also have a defence if, having been
told exactly what was to be said, the plaintiff made a statement explaining his side,
and that statement was included in your report.
The matter has already been judged
It is a principle of common law that courts will not hear a second case based on the
same complaint against the same defendant. If you have been cleared already, the
plaintiff cannot have a second try using the same imputation. However, if you repeat
the words again in broadcasts after court proceedings have started, this would be a
separate publication and could result in another action. Beware also of repeat
broadcasts; these will be counted separately and may offer a plaintiff a second chance
2 of 4
of suing for defamation.

The plaintiff has died
An action for defamation is a personal action. Dead people cannot sue for defamation;
neither can an action begun by a plaintiff be continued by his children or family if he
dies before the case comes to court. The action dies with him.
There is, however, provision for the relatives of a dead person to sue for defamation on
their own behalf if they are defamed by what you say about their dead relative. For
more on this, go to Chapter 69: Defamation - what you cannot do.
The statute of limitations has expired
The Uniform Defamation Law requires that a plaintiff must commence proceedings for
defamation within a year of publication or broadcast. However, courts may extend this
to up to three years if the plaintiff can demonstrate there were good reasons why they
could not start the action within a year.
Apologies and resolution of civil disputes without litigation
These are not, strictly speaking, defences. However, as mentioned earlier, the law lays
down some quite specific mechanisms by which apologies can be accepted and
complaints about defamation can be resolved without resorting to the courts. This is, of
course, a matter for your newspaper or broadcasting company to decide and therefore
you should obtain legal advice before such a course of action is started.
^^back to the top
Malice
One final warning about the legal concept of malice:
To use the defences above you must usually show that publication was made "in good
faith, without ill-will". Ill-will is usually referred to in law as malice, and includes any
dishonest or improper motive. For example, to broadcast a critical comment to get
revenge would be seen as malice. If the court decides that you acted with malice, you
will lose your defence and could face a charge of criminal defamation, which can be
punished by a fine or imprisonment.
^^back to the top
How is defamation punished?
Defamation is usually a civil offence, although it can be a criminal matter under special
circumstances.
Civil defamation
Most complaints of defamation are dealt with under civil law. That means that cases go
to a civil court and are punished by awarding money (called damages) against the
person found to have committed the offence. In civil defamation, the principle is the
same as for someone who has been physically injured as a result of someone else's
actions, either through carelessness or a planned attack.
Under the uniform law, it is usual for juries to determine whether defamation took place
and whether the publisher or broadcaster has a defence. If defamation is proved and
there is no acceptable defence, the judge will decide how much harm has been done
and express that in the amount of damages they award. There are several kinds of
damages:
General or compensatory damages, which a court may award for a person's
loss of reputation, shame or hurt feelings. Under common law, once the court
has found that he has been defamed, the plaintiff does not have to prove that
actual harm has been done. General damages do not have to be large sums of
money. If a judge or jury finds that you have defamed the plaintiff but that no
real harm has been done, the plaintiff may be awarded nominal damages of a
few dollars. Nominal damages may also be awarded if the court feels that you
have been only slightly at fault or that the plaintiff was in some way responsible
for the defamation in the first place.
Special damages compensate for any loss of business or earnings the plaintiff
may have suffered as a result of the defamation. These could also include any
money the plaintiff has spent as a result of the defamation, for example in
sending letters to clients denying the allegations.
Aggravated damages can be awarded if the court thinks that the defamation
was deliberate, possibly out of ill-will or any other improper motive (usually
referred to as malice, which we discussed earlier). For example, if you knew that
what you were publishing was false and defamatory, but went ahead with the
story to stir up a scandal and boost readership or listener numbers, the court
would probably award aggravated damages against you. They may also award
aggravated damages if the defamation was said in a particularly nasty way.
Damages are usually large in the case of media organisations because the courts think
that they can pay more for their mistakes than individuals can.
As in any court case, the judge may also award costs against you if you lose (or against
the plaintiff if they lose), or simply say that each side should pay their own costs of the
case.
________________
For more details on how Australian Defamation Laws are applied, you can find valuable
information at: http://www.australian-defamation-lawyers.com.au/, including a
summary of changes under the Uniform Defamation Law.
Professor Mark Pearson of Bond University has produced The Australian Journalist's
Defamation Checklist, an excellent guide to defamation in Australia together with an
interactive online checklist to use when writing a story.
^^back to the top
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How do you sue someone for Defamation?
How do you sue someone for Defamation?

Personal Law Blog
February 18, 2014
Taking legal action against someone for hurting your reputation is a big step. You should first get online legal advice and see if there is some other way to
remedy the damage they have caused. However, defamation can cause genuine harm to you or your business see below for Legal Visions introduction to
understanding defamation law.
What is the legal definition of defamation?

Defamation is the publication of false information which hurts a persons reputation or leads them to be ridiculed, shunned, avoided or despised.
What needs to be proven in a defamation case?

There are some basic legal and factual elements which need to be proven for a defamation case to succeed:
It must be communicated or published to a third party
The information must be defamatory
The information must be about the plaintiff
How do you Sue Someone for Defamation? - LegalVision.com.au
1 of 3
There is no lawful excuse for publishing the information
How do you prove something is defamatory?

Defamation can be blatant lies and it can also be false representations known in defamation as an imputation.
In a defamation case the onus is on the plaintiff to prove their reputation has been damaged by information being communicated or published. The legal
test used to determine whether a statement is defamatory is whether in the eyes of a reasonable person the plaintiffs reputation has been lowered.
This is the objective test utilised by courts in assessing damage.
Who can sue for defamation?

Only individuals, certain not-for-profit corporations and corporations with 10 employees or less are entitled to sue for defamation.
When must a person who has been defamed sue?

A person who has been defamed has 12 months from the date of publication of the defamatory material to commence proceedings against the publisher of
the material.
What are the defences to defamation?

There are many defences to defamation. Actually many, many things which are published are defamatory, but the publisher is entitled to rely on a defence
to defamation. These include:
Truth: Also known as justification if the defendant can prove that the defamatory material was substantially true then they can defeat the case.
Contextual Truth: This is basically the truth defence, but applied to imputations.
Privilege: Some material is protected by the law such as when you are giving evidence in court or a tribunal or publishing to a limited group who
have a genuine interest in the subject matter of the publication.
Public Document: It is not defamatory if you simply republish material which was available in a public document.
Opinion: In order to succeed in this defence you will need to show that:
1. It was obvious to the third party that you were merely expressing your opinion;
2. It was a matter which is in the public interest; and
3. It was based on true or privileged material.
Triviality: If you can show that the defamation was trivial then you may succeed in having the matter struck out.
How much money can I get if I sue for defamation?

It depends on the extent of the damage done and in some cases parties negotiate an out-of-court settlement or apology. Damages are currently capped at
$355,500.00.
What should I do if somebody has defamed me or I think I have defamed someone else?
Seek online legal advice from LegalVision.
By Lachlan McKnight. Lachlan is the CEO of LegalVision.com.au. Lachlan is an experienced corporate lawyer with particular expertise in
banking and finance and general corporate matters. LegalVision provides businesses with access to high quality online legal advice, If youre
looking for a specialist small business lawyer or an expert consultant to register a trademark, just get in touch!
Next Steps
Need more information about defamation or any other legal issue? Speak to one of our specialist lawyers today. Just click on the link below for a
free consult!
Start Here
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by The FindLaw Team

What to do if you have defamed someone online

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More from the guardian

Comments for this discussion are now closed.

05 March 2014 9:00am

Or, be like me and dont have a Facebook or Twitter account!

05 March 2014 12:36pm

it's near impossible to erase though

05 March 2014 10:51am

Boy oh boy...gag the world

05 March 2014 11:00am

05 March 2014 12:30pm

05 March 2014 1:42pm

05 March 2014 8:32pm

The debate around

Online social networking: defamation

What are some forms of defamation?

What is cyber defamation?

What can I do if I have been defamed on the internet?

What to do if you have defamed someone over the internet?

Online social networking: defamation - Legal Aid NSW

Want more information?

Online social networking: defamation - Legal Aid NSW

Online Defamation: What you need to know

Online Defamation: What you need to know - TechLife

Julie Posetti photo credit: Tim Anger

Social media = a billion voices

Mark Pearson, Professor of Journalism at Bond University.

Online Defamation: What you need to know - TechLife

Online Defamation: What you need to know - TechLife

Old laws, new interpretations

Online Defamation: What you need to know - TechLife

Online defamation 101:

Online Defamation: What you need to know - TechLife