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Defamed on social media? Why we need stronger laws

It’s no secret - it pays to be careful of what you say on social media. Recently, people have been fired, publicly shamed and even jailed for posts they’ve made on websites like Facebook and Twitter.

Shine Lawyers’ National Defamation Practice Leader Peter Coggins says that many Australians are under the impression that we have an overarching right to free speech. In reality, damaging and defamatory comments can have dire consequences both online and off.

Why strengthen social media laws?

In 2016, Lyall Mercer, managing director of Mercer PR, wrote an open letter to all state and federal attorneys-general and shadow attorneys-general requesting a review of social media laws. In the letter, Mercer said it was time to crack down on people using social media to harass, abuse and defame others.

“There are too many who freely spread lies about people and companies, abuse those they know nothing about, comment on legal cases before the court – potentially jeopardising fair trials – and cause a great deal of anguish for others,” he was quoted as saying in an article published by Lawyers Weekly.

Australia’s defamation laws were originally developed to handle defamatory publications found in newspapers and articles. However, as technology advances, old print mediums are becoming increasingly outdated. Our defamation legal scheme needs to adapt. As Mercer argued, Australian defamation laws need to be easier to uphold in the online space.

How to protect yourself

Social media isn’t going anywhere. But here are some ways to protect yourself from getting into trouble as you navigate the digital realm:

  1. Avoid making defamatory statements. This includes spreading misinformation about people or small businesses. Social media users are subject to the same laws in this area as other media creators. There can even be consequences for “sharing” a defamatory post you didn’t create.
  2. Cyber-bullying and online harassment is a crime. Recent amendments to the Criminal Code now make it illegal to use a carriage service to menace, harass or cause offence.
  3. Avoid posting about matters that are currently before the courts. Social media comments about accused persons might endanger the presumption of innocence and interfere with the legal process. If your post is responsible for a mistrial, the consequences can be severe.
  4. Don't mislead your customers. If you run your own business, don’t make misleading claims on your page. It's also important to carefully manage your page and don’t allow others to make misleading claims in the comments.

Written by Shine Lawyers. Last modified: January 16, 2019.

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