What is Defamation, Libel and Slander?
Defamation arises where someone says or writes something which harms another person’s (or in some cases, a business’s) reputation.
In the past, defamation in writing (called “libel”) was distinguished from defamation in speech (called “slander”). In Australia, this distinction no longer exists, and we simply refer to the term defamation.
When we hear about defamation in the news, it is often in relation to public figures, some recent ones being Rebel Wilson, Christian Porter and Geoffrey Rush. However, a person need not have a widely recognised name to have their reputation harmed and seek protection under defamation law.
Increase in Defamation cases
Defamation law has existed for centuries, dating back to at least 13th century England. Up until relatively recently, defamation cases between regular members of the public mostly involved spoken words. We now see defamation arising out of emails, social media posts, text messages, review sites, news sites, and various other Internet forums. Australia also recently had its first defamation case involving a Twitter post containing only emojis (Burrows v Houda  NSWDC 485).
In the 2016 case Rothe v Scott (No.4)  NSWDC 160, Chief Justice Gibson reflected on this increase in defamation cases in the context of social media, noting that ‘Defamation actions in relation to social media allegations of an extreme nature, generally without any basis and driven not by mere malice but some kind of Internet “road rage”, are increasingly common before the courts, as the facts in the above cases demonstrate. The anonymity, instantaneousness and wide-ranging reach of the Internet and social media make it a dangerous tool in the hands of persons who see themselves as caped crusaders or whistleblowers, or alternatively want to humiliate or “troll” other members of the community for the purpose of gratifying their own wishes or fears or for the purpose of gaining attention.’
A recent example of this “internet road rage” is Dean v Puleio  VCC 848, in which a patient of a Melbourne periodontist left several Google reviews accusing the periodontist of being unprofessional and a bully, among other things. The patient was ordered to pay the periodontist $170,000 in damages.
Defences to Defamation
While the purpose of defamation is to protect a person’s reputation, it is balanced by the need to protect a person’s freedom of speech. In this regard, there are various defences available in defamation law which preserve a person’s freedom of speech.
These defences including the defences of honest opinion and justification (i.e. truth). While these defences do not give a person free reign to say whatever they like on the internet, they do allow a person (to a certain extent) to fairly express their dissatisfaction with a good or service.
For example, in D.G. Certifiers Pty Ltd & Another v Hawksworth  QDC 88, Rosengren DCJ enunciated that ‘Like many people who write internet reviews, I am satisfied that the defendant’s motivation for making the subject reviews was… to prevent other potential clients of the plaintiffs from having a similarly unhappy customer service experience to that which he had encountered.’
Things to consider before posting
Before posting a review, consider the following:
– Are you able to resolve your issue directly with the other person by phone or email?
– Ensure your review is truthful and not misleading in any way.
– Avoid getting personal and consider how your comments might affect the person on the receiving end.
– Remember that it can still be defamatory if the person is not specifically named, if that person could be identified by people who read the review.
A good rule of thumb we like is to dance like nobody is watching, but text, post and email like it will be read in court one day!
If you need legal advice on something someone has posted about you on the internet, or something you posted on the internet, get in touch with us through our contact page here.