Followers of & Legal’s “News and Alerts” will be familiar with our previous article warning of the dangers of potential defamation action resulting from the intemperate use of the humble “Emoji”.

Case law around defamation and social media continues to evolve. In the article below, Alice Watson, a recent recruit to the ranks of & Legal and who is currently undertaking her Honours thesis in “Defamation & Social Media” writes on recent developments.

Social media – although by no means a new phenomenon – continues to create novel issues in Australian law. Defamation claims, in particular, have dredged up a variety of issues for courts in relation to the many ways technology has changed how we communicate.

For example, the increased use of emojis, content hyperlinks and comment functions, have led to interesting developments in case law.

The Uniform Defamation Acts, which were introduced in Australian States and Territories in the early 2000s, did not discuss the nuances of online communications. In fact, the legislation declined to describe what a ‘publication,’ is for the purposes of defamation matters. This meant, that when David Voller became the target of hate comments and racist remarks on the Facebook pages of Australia’s largest news media companies, the High Court was required to discuss the issue.

Interestingly, the majority of the High Court took an approach that was not anticipated by the public or academics who wrote on the issue. The factors that affected this decision were complex and closely considered by a variety of courts. To briefly summarise these factors: the news media companies had shared hyperlinks of an emotionally charged Four Corners episode to their public Facebook pages. With sufficient resources to monitor these online pages and clear monetary gains to be made from inciting heated public debates, the Court found for the claimant, Mr. Voller.

Fairfax Media Publications Pty Ltd, Nationwide News Pty Ltd and the Australian News Channel Pty Ltd, were therefore made liable for the defamatory comments that were made on their social media pages by third parties. To paraphrase the majority judgment, the companies were liable as publishers of these comments as they had facilitated, encouraged, and thereby assisted their circulation.

This decision therefore raised large question marks for social media users, defamation lawyers and the news media industry. It stands as a warning for the Australian public, that the internet is not beyond the reach of the law.

If Alice’s article raises any questions or concerns please contact her at & Legal in the New Year and she will be happy to discuss these with you.