Every week, Shine Lawyers’ National Defamation practice receives multiple enquiries from people impacted by defamatory comments on Facebook; and the numbers are going up.
Our right to free speech
Many individuals are under the impression that under Australian law, we have an overarching right to free speech, and this right protects those who makes offensive and deprecating comments about others on social media.
In reality, there is no right to unfettered free speech in Australia, and we have a national regime of robust defamation laws to protect those who are subject to damaging and defamatory comments.
Facebook defamation: What can you do?
Defamatory and demeaning comments on Facebook can really hurt your personal and professional reputation if immediate action isn’t taken. So if you believe you have been defamed on Facebook, or a similar social media platform, follow these seven key steps to protect both your reputation and your right to take action:
1) Act fast
In Australia, you only have one year from the date of the defamatory post to institute legal proceedings. Identifying and locating the party responsible can be tricky, particularly in social media cases, so it is important to take action as soon as you become aware of the defamatory post.
2) Capture all evidence
Take a screen shot or find some other way to capture the defamatory comments. While the offensive post could be recovered if deleted, having evidence of the defamatory material allows us to use it in the initial stages of your claim. It is also important to capture any further comments, ‘likes’ or shares that have been made by others in support of the defamatory post. This assists us in establishing defamatory meaning – an important part of your defamation case.
3) Financial impacts
If you believe that the comments have impacted you financially - such as a downturn in trade for your business or an impact on the amount of contract work you might receive - you should gather all historical and current financial data from your business. Of course, any specific evidence linking the defamatory comments to economic loss should be preserved.
4) Keep your distance
Where possible, refrain from engaging directly with the person who has defamed you, or anyone who has commented on the defamatory post. As difficult as this may be, retaliating can damage your case and exacerbate the initial harm to your reputation.
5) Let Facebook know
After you have captured evidence of the comments, contact Facebook or the social media platform. Report the post and the comments, and ask for them to be taken down. Once you have made this request, monitor Facebook’s response and any action taken.
6) Know your desired outcome
Consider the outcome you wish to achieve by bringing a defamation claim. Damages are available for defamation. However, the national regime caps the amount courts can award. Other remedies may include orders for formal written apologies, removal of the comments or posts, or court injunctions.
7) Stay calm
Last but not least, don’t panic. The Australian legal system is more than capable of handling defamation cases involving Facebook and other social media platforms, and the Courts will continue to apply the strong protections under our defamation laws.
Written by Shine Lawyers. Last modified: January 16, 2019.