Defamation is a wild beast. It’s hard to understand and even more difficult to explain how it works. It is the Khloe Kardashian of the legal world.

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Here is the black and white: for something to be defamatory a person must be able to prove that someone has published a matter, as defined in the Defamation Act 2005 (WA), containing one or more defamatory statements. What is a defamatory statement, you ask? That can be a little unclear. For many years we used UK common law and so the general “test” for defamation was whether or not a statement had caused harm to a party “in the right-thinking members of society”. Not personally knowing anyone who fits into that category, I can understand how this got a little murky.

The position for defamation as stated by the Australian High Court is whether the published matter is likely to lead an ordinary reasonable person to think less of the person being defamed.

So when is something considered to be “published”?

Publication of defamatory statements occurs when that statement is made available to read by at least one other person. Due to the prevalence of social media and internet-based communication, proving publication can be a difficult task. This does not mean that people using social media cannot be held accountable –  courts can, and have, ordered disclosure by service provider of access records to determine whether publication has taken place.

And what kind of “material” is a problem?

Literally anything by which something may be communicated to a person. As this covers such a nebulous concept, we tend to leave determining whether material is defamatory or has defamatory meanings for determination to Judges alone.

Quick guide as to how not to defame people online:

Step 1: Don’t post things on social media, including Facebook, Twitter, your personal blog or any website, which has a substantial chance of deriding, diminishing or significantly demeaning another person, or their reputation, in the eyes of a third party.

Step 2: Don’t deliberately distribute public content from other people that has a substantial chance of diminishing or significantly demeaning another person, or their reputation, in the eyes of a third party.

UNLESS you are reasonably certain that what you are saying is substantially true or is an honest opinion which you hold based on material which you’d be confident to present to a court as being substantially true.

Realistically

The conclusion I’m drawing you to is not one that really empowers people. Realistically, people are defamed online all the time and typically, very little comes of it. Most of it has to do with money. Defamation actions are usually only brought by people who have significant public visibility, and are subsequently impacted by defamatory claims against them, to a greater extent than you or I. Going to court to get someone to take down a defamatory Facebook post or a tweet is rarely a viable option for the ordinary person as it is a very expensive and time-consuming process. Realistically.

Jo Wynaden
Sonder Legal