LAWYER Q&A DEFAMATION
Nyst Legal director Brendan Nyst looks at the laws relating to defamation and how the online world is captured within it.
Q. What can I do if someone defames me online?
A. The Queensland Defamation Act 2005 sets out the steps one must take to address defamation, either online or otherwise. In the case of online defamation, the process normally kicks off with a so-called ‘concerns notice’ requesting the removal of offending content and perhaps, but not always, other relief such as apologies, retractions, damages, and legal costs.
In recent years, my firm has seen an explosion in our defamation cases arising from online publications. The exponential expansion in Internet use by both businesses and individuals means companies are nowadays much more invested in their online presence, because of the extensive range of potential exposure.
Businesses, both big and small, are now much more conscious of, and sensitive to, any online publication or comment that defames them in any way, and nowadays most commercial entities will generally react swiftly to anything they think oversteps the bounds of fairness and truth, particularly on social media forums, online review forums, and Internet search engines such as Google.
Of course, while defamatory publication very often occurs in writing — on the Internet, in a blog, in a newspaper, an email, or even old-fashioned snail mail — it doesn’t necessarily have to be in writing to be actionable. Defamation can and often does occur by some purely verbal statement on radio or TV or just over the fence. It can be part of a public pronouncement, a speech at a rally or at a club meeting, or it can be just something said in relatively private circumstances where a disparaging comment is made, perhaps to an employer or to another business associate.
If defamation causes damage to the person concerned — for example, if it’s said to your boss and you are fired as a result, or it’s said to your customer or prospective customer and your business suffers as a result, or even if it’s said to a complete stranger and your reputation and standing in the community are thereby affected — you have a right to recover damages for that loss.
The same, of course, is true with defamation online. But, usually, the first and most urgent concern with online defamation is to have the offending material removed, because the Internet’s life is long and its range extensive. To address that issue, your first step will usually be to demand swift remedial action from the publishing site or search engine such as Facebook or Google. These days, if those companies are alerted to clearly defamatory content, they will usually take action fairly promptly to remove the comment or, in the case of Google, remove the link to the offending website.
In instances where the defamatory content is not removed, you can take court action either against the person who has made the defamatory statements or against the online publisher, or both. There has been a raft of recent court cases by Australians bringing claims against online publishers for their failure to remove defamatory material from their sites.
The liability of US-based Google Incorporated, which operates the global search engine, to remove defamatory content in Australia has been the subject of extensive recent debate, and continues to be litigated in Australian courts. Of course, taking on a massive multinational entity on such an issue can be a somewhat daunting and uncertain prospect, so more often than not complaints are directed at the initiating source of the offending publication rather than the online publisher.
In the end, our personal and commercial reputation is perhaps our most valuable asset. That’s particularly so for small business owners trying to carve out a living. For them, the online world can be both a massive leg up and a painful thorn in their side.
My best advice is to have a clear strategy in place to quickly identify defamatory content and efficiently respond to it with a prompt request for its immediate removal. Litigation can ultimately redress any damage if necessary. But it should be very much seen as a last resort option, because the cost, in time, energy, and distraction from core business, can often be crippling. The trick is to remedy the wrong before the real damage occurs.
Brendan Nyst, Director and Head of Commercial, Property, and Dispute Resolution & Litigation, Nyst Legal