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Social media and small businesses: Beware of defamation issues

Monday, 20 August, 2018

Small businesses have cottoned on to the fact that social media is a cheap and effective way to market their wares, and at its most effective, can be a powerful tool.

 However, one of the things that people running social media accounts on behalf of small businesses should be mindful are some of the potential liabilities that may be attached to using such platforms, in particular issues relating to reputation damage, and defamation.

Although there aren’t any laws directed specifically towards social media, there are a number of laws both at the state and national level that can be used against individuals, such as the uniform Defamation Act, which is applicable to the majority of states and territories within Australia.

What is defamation?

At its most basic level, defamation is the publishing of something that is likely to cause harm to a person’s reputation by:

  • having others think less of the person;
  • causing others to shun and avoid the person;
  • causing hatred, contempt or ridicule of the person;
  • having the estimation of the person to be lowered by others;
  • affecting the person’s private character and reputation, and also their business or professional life.

One of the key questions is not whether the person has been offended or insulted, but rather, has the perception of that person by others been harmed through the publication of words, pictures, or any other medium that can convey meaning. Furthermore, the presumption of harm and actual harm may not need to be demonstrated.

Defamation action

All individuals have the capacity to sue for defamation against a publisher (either a person or business) responsible for the publishing of the material.

Defamation as an area of law is difficult, but the added layer of complexity involved with publishing material online means that it can be disseminated in a number of jurisdictions globally. Also, who may be considered as a ‘publisher’ on social media has the potential to include any person using a social media– even in instances where they may not have actually produced the material originally.

The elements of defamation

If a person believes they have been defamed online, they must demonstrate some the following elements:

  • The material must have been communicated to at least one other person

Perhaps the most pertinent aspect of defamation is that the material must be communicated to a third party, and the third party has been able to hear, read, or see the material. If the material has not been consumed by a third party, an action of defamation may not be possible.

  • The material must be defamatory

The applicable test when determining whether the material is defamatory, is whether the average person of average intelligence would make such an imputation. In addition to the test, the courts may also consider the material communicated from a number of perspectives, such as: the ordinary meaning of the words; the type of inferences that can be drawn from the words used; and the implication in light of any relevant information or the surrounding circumstances which is known to others. Furthermore, context will also be considered when deciding whether the material is defamatory.

  • The person claiming to have been defamed must be identifiable

It may not be necessary for a person claiming to have been defamed to be identifiable, but rather, if the ordinary reasonable person can ascertain from the material that it is in reference to that particular person, may be enough.

The internet and social media are wonderful tools for selling your business, however, you should still be mindful that anything published online can still potentially have real world consequences.