Prior to the explosion of social media, it could be argued that marine business was seldom exposed to a legal claim for defamation. But with the ease and access that every person has to this incredibly broad form of communication policing what is said has become and extremely difficult leaving business even more exposed. In essence the tension from a legal perspective is the tension between freedom of speech and control of that freedom. From a business’s perspective, how is that freedom controlled so that employees and directors alike do not unwittingly push the post button that may eventuate in a costly legal settlement. In Australia old defamation laws have been replaced by unified laws that attempt to fix the old laws, however their application with respect to the social media explosion still remains to be seen.
Is the publication of any false imputation concerning a person, or a member of his family, whether living or dead, by which (a) the reputation of that person is likely to be injured or (b) he is likely to be injured in his profession or trade or (c) other persons are likely to be induced to shun, avoid, ridicule or despise him.
A publication of defamatory matter can be by (a) spoken words or audible sound or (b) words intended to be read by sight or touch or (c) signs, signals, gestures or visible representations, and must be done to a person other than the person defamed.
For Defamation to be proved three things have to have happened:
That the words were capable of a defamatory meaning as understood by ordinary members of society that harms the person, their reputation, their business or affects the way other people treat them. Actual proof of being harmed is not required as it is enough that the false statement could have led to harm.
That the words identify the individual or small corporation with 9 or less employees.
That the words or pictures have been published, being heard or seen beyond a personal conversation.
Who can sue?
Under the new Uniform Defamation Laws, an individual as well as a corporation with 9 or less employees can sue. However, individuals or groups of individuals employed by or associated with a large corporation such as company directors, CEOs or managers can still sue.
The circumstances that business can find itself are endless with defamation flowing both ways where in one case an owner of a marine business came to work to find posted in large writing on signs on a vessel in a marina, not to get work done by this business and the same customer had gone on line posting defamatory comments about the business and its owner. While this was an unfortunate state of affairs for the business it can also go the other way with employees and directors being tempted to post or re-post unsavory comments about customers who either complain about the standard of work completed or who fail to pay their accounts. In reality these clients are a pain in the back-side but broadcasting your ill feelings to the world does not change who these people are, in fact by their very nature these are the very client’s who will take legal action in defamation arguing their reputation has been defamed.
Social Media and the Law
Social media encompasses the posting of comments among users of social networking sites that have a broad reaching capacity due to the sites being interactive global media forums. Examples include Facebook, Twitter, YouTube and Tumblr including internet review sites and personal blogs, which allow its members to publish in an unregulated forum that has by its very nature increased the potential for business to be exposed if the business fails to provide rules, guidance and monitoring of its employees and directors.
A post can be made by several employees that includes the author, editor, printer and distributor; all of whom each may be jointly and severally liable. But where the real concerns is that employees and the business’s agents can also be caught where the post was authorized and made in the course of employment or within scope of agent’s authority. The reality that business must face is that its employees and directors can all be caught by the new laws and while there are possible questions around a post that is held by an American social media site, business should not avoid this legal argument in the first place.
In fact it could be argued that the new laws are inherently week in respect to a claimant where a post is made on social media, despite an attempt to balance the legal equation in Australia. By way of providing some understanding as to the possible limitations of the new laws, the issue for the old longstanding media laws was that these laws were drafted in an era when social media did not exist. Thus the question is whether the new Australian Uniform Defamation Laws offer any further relief remains arguable given that the new laws were drafted to fix the problems inherent in the old laws, while not considering the global nature of social media. Social media sites are almost exclusively based and programmed in the United States where freedom of expression is zealously protected over a claimant’s right to protection of reputation; where by contrast Australian defamation laws attempt to ‘balance’ reputation and free speech that is often weighed in the claimant’s favor. However, this position is difficult to reconcile with an unregulated social media and protection of reputation. Put simply, a claim against the business by a disgruntled client or other business (the claimant) in Australia is weighted relatively equal between the business and the claimant whereas, if a freedom of speech defense could be successful argued then the balance would shift in the business favour.
Regardless of the hypothetical legal arguments, businesses using social media need to closely monitor what their employees and directors are saying about others to ensure they aren’t putting themselves at risk of a claim of defamation. Under Australian laws, you (or your company) may be at risk of a defamation claim if written material has harmed the reputation of a person, a small business of 9 or less employees or a not for profit organisation. It is not just the original authors who are at risk of a defamation action, the net stretches as wide as anyone else who publishes or re-publishes the material. So just because “someone else said it” doesn’t mean you won’t be caught up in the action if you have published or re-published it. There are a few possible defenses of a defamation allegation being: if you can prove that the statement is substantially true. However, establishing that you have to have enough proof is not as easy as it sounds. Other defenses include qualified privilege for things like publication of public documents, honest opinion where the published materials are a comments being not a statement of fact. Of course, the mere threat that someone may have taken our comments as defamatory will be enough to delete the material immediately. However, in today’s cut and paste, tweet and re-tweet kind of interaction with the internet, removing all traces of our comments from the depths of the internet is harder than you think.
The bottom line is that business owners need to be proactive to educate their employees in respect to the ramifications of a defamation action. This education program should also provide clear rules, guidance and control of media usage so as to avoid any claim in the first place. And while it can be argued that the new laws may have some limitations in respect to social media, these laws have certainly strengthened the claimant’s position in Australia.