Digital Defamation

When it comes to making a statement online it may seem like anything goes: blog rant, LOL-cap someone's photo, flame a forum, whatever. Yet while the Internet is a fantastic space where anyone can have a say on anything it's important to remember that 'real world' defamation laws still apply. For artists and authors (take note, bloggers), this means if you are creating a work that could potentially defame someone you have to consider the consequences not just if you publish a book or show in a gallery, but also if you put the work on the internet.

Defamation 2.0

Defamation is a communication, from one person to at least one other, that lowers or harms the reputation of an identifiable third person and has no legal defence. This means a plaintiff who wants to bring a defamation action under Australian law has to prove three points:

  1. that the communication has been published to a third person;
  2. that the communication identifies or is about the plaintiff; and
  3. that the communication is defamatory.

The fact that the defamation has taken place over the internet doesn't change the need for a plaintiff to prove these points. Two things, however, should be kept in mind.

First: when a communication is published online the 'third person' receiving it could be anything from a handful to thousands (if not millions) of people. In November this year an Australian parent was successfully sued over $80,000 for defaming a NSW school principal in an email sent not just to the principal but other parents at the school on a mailing list. At the other end of the scale is the Star Wars Kid who after becoming the internet's biggest joke settled out of court with the video uploaders for an undisclosed amount.

Second: under Australian law everyone involved in the communication is potentially liable for it. This means a plaintiff can not only try going after whoever created the defamatory material but also the website that hosts it. Most websites prefer to avoid legal trouble, so if for example an online gallery receives a defamation complaint about a picture you've uploaded it may decide to take the easy option and just remove the picture, with or without notice to you. It's worth noting that many websites such as deviantART and Flickr have a clause in their terms and conditions that users don't use their service to upload defamatory material.

Avoiding a defamation problem online

There are ways to avoid or at least minimise the risk of a defamation suit. The easiest is to consider whether something is defamatory in the first place. In doing this the key question is 'does the communication lower/harm the plaintiff's reputation, hold them up to ridicule, or lead others to shun/avoid them?' (ie., does it damage the plaintiff's reputation). This isn't an easy question to answer, but some things to consider:

  • It's not enough to use a false name. A person can still be identified if there's enough information to put together, something made all the easier with the power of Google.
  • The limits are regarding cartoons, humour, parody or satire are unclear. Good humour is likely safe but derisiveness, ridiculousness or 'for the lulz' may be less so.
  • Context is important. A picture or comment that isn't defamatory when communicated to a small audience 'in the know' may become so if removed from that context and widely circulated, something which happens very easily online. On the flipside, a plaintiff can't take one statement out of context and claim it's defamatory if there is an 'antidote' to that statement elsewhere in the communication.

If you think the answer to the question is 'yes' or even 'maybe', there are legal defences. These include honest opinion, justification/truth, and qualified privilege. For more information see Arts Law information sheet on Defamation.

Note on anonymity

On the internet, it's easy to be anonymous. Anonymity makes it difficult for a plaintiff to bring a lawsuit however be aware that some courts around the world have been willing to unmask anonymous bloggers in defamation actions. Whether the same will happen in Australia is yet to be tested.

In the end

Law aside, people do get away with a lot online, and the internet's value is in free and open communication. It gives everyone space to make a statement but that space is not without its limits and defamation law is just as relevant digitally as it is in the real world.

Jo Teng is a solicitor at Arts Law.

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