One of the most recent high-profile cases involves Eddie McGuire, a well-known broadcaster and president of the Collingwood Football Club, who says Facebook hosted a spoof advertisement naming him as a user of Tryvexan, a fake treatment for erectile dysfunction.įacebook is liable because it did not properly review and check its advertising, McGuire’s legal team has argued. In Australia, damages can be brought directly against the social media behemoths.
“Then you might consider it,” Collins says. The presumption in the UK is also that you can’t sue a platform unless you have exhausted your legal rights against the party responsible for posting the offending material. “You have to sue the person defaming you, not the platform that published the defamation.” “They’ve taken the line that freedom of online expression is more important than damages that can be done to online reputations,” he says. The US, Collins says, has taken “a typically extreme response” and granted social media platforms complete immunity. Different countries have adopted different policy responses to social media, says Dr Matt Collins, chairman of the Victorian Bar. “You then get an immediate order for a comment to be taken down with an expert panel judging what real defamation and what is simply abuse.”Įngland and Wales have a “serious harm test” that weighs up libel for the reputational or financial harm it might cause, but it is not universal. “It could be a practice court where not a lot of proof may be required,” Fraser suggests. The weakness in the law, claim some, is that there is no quick, cheap and effective mechanism to get material removed. Different jurisdictions, different laws for social media While big payout cases involving actress Rebel Wilson and former treasurer Joe Hockey have received the most attention, the person-on-person attacks – what defamation lawyers call “backyarders” – are causing legal logjams.Īustralia’s defamation laws were enacted and passed in 2005 (and came into effect 1 January 2006), the year after Facebook was founded and before the advent of iPhones and Twitter. Some mention a special tribunal, others a fast-track system or a small claims jurisdiction. The legal profession believes that something must be done, but nobody quite knows what. “The speed of publication on social media gets traction so quickly that current legal remedies aren’t a great way of dealing with the problem,” says Kym Fraser, commercial litigation partner at Clayton Utz. Laws, of course, take months to be amended and updated, while social media evolves and users of Twitter and Facebook adapt and readapt to the platforms on a daily basis. The country’s defamation laws, which date back to 2006, are out of step with technology, Gibson said. Angry people are seeking urgent redress and recompense for abusive posts. Judge Judith Gibson, who runs the defamation list in the NSW District Court, said in March that an overwhelming majority of defamation cases before the courts derive from social media.
It probably comes as no surprise then that social media defamation suits are rising exponentially across the world.Īustralia is no exception, prompting one of the country’s best known defamation judges to push for a major legal overhaul to deal with the lawsuits flooding the courts as a result of disputes on social media. We live in a world of constant online abuse, where anonymous people troll anonymous people for the fun of it, and where private grudges in the real world get played out as ugly spats in a virtual one.