Twitter and Facebook – The Risks Of Outrage – Defamation

**THIS INFORMATION SHOULD NOT BE CONSIDERED AS LEGAL ADVICE NOR DOES IT INTEND TO FULLY OUTLINE ALL POINTS RELATING TO ONLINE ISSUES OF DEFAMATION – FOR FURTHER LEGAL ADVICE ABOUT YOUR RIGHTS, PLEASE CONTACT THE WRITER OF THIS BLOG**

Today, the sex and adult entertainment industry heavily relies on the use of social media such as Twitter, Facebook and other platforms to develop relationships with not only members of the industry but with clients. While the benefits of having these platforms are compounding exponentially as the use of social media grows, there are some risks involved.

Allowing the Outrage

We have all had a categorical meltdown on Twitter or Facebook (including me!). We have all been very angry and we have have, rightfully so, relied on platforms like Twitter and Facebook to let the world know our views about certain issues. However, there are a few things that you need to keep in mind when you find yourself “on the rampage” on Twitter or Facebook. In other words, there are boundaries that could be crossed which could land you in serious trouble from a legal perspective.

The Law Around the World

Laws differ throughout the world with respect to defamation (ie. The United States’ citizens are relatively safe – I say that cautiously –  with the existence of the 1st Amendment of the American Constitution, allowing “free speech” ), Commonwealth counties such as Australia, England and Wales still have strong laws about defamation – and they are only getting stronger as courts are beginning to decide on cases which directly relate to activities online.

But What About My Free Speech?

We often find ourselves yelling “I can say what I want! I have a right to free speech, you know!” or “She started it first! I have a right to reply!” or “the industry should know what really happened!”

Well, sadly that is not the case.

Defamation is briefly defined as “reputation damage” but its definition differs around the world. It is sometimes interchangeable with the word “libel” but its important to remember that online activities are not “slander” because slander is when reputational damage is suffered through vocal behaviour.

Will I Go To Jail If I Defame Someone?

Defamation is a “tort” which is a civil wrong. Its NOT a criminal act (there are some instances of criminal defamation but it is rare), meaning that the person who has suffered “reputational damage” must commence action against the alleged person who has defamed the other with a civil law suit. Yes, this is an extraordinary step to take (and as a warning, quite an expensive one) but if what has been said is so significantly damaging to a reputation, it may be worth fighting for.

What qualifies as defamation?

To defame someone, you essentially need to have been found to have “lowered someone’s standing in the eyes of one person.” This is important. In other words, it doesn’t matter how many followers you have, or how many friends you have on Facebook, you cannot rely on the defence that “oh well, only 345 people saw!” Unfortunately, it only takes one person to have felt that reputation was damaged for the case to be actionable! Furthermore, even if you did not mean to defame them, the court will look past this and still determine that your actions have caused reputational damage. Even more concerning is that by retweeting defamatory comments or “sharing them” on Facebook can land the person who has done the retweeting into trouble as well. Courts have even found that by pressing “Like” on Facebook, you may be liable!

But No One Knows Who I Am!

You cannot hide behind your anonymity. It often comes across my table the comment that says “well as long as I remain anonymous, or have a fake account, they cannot find me, right?” Incorrect. There are many cases in the United States where Twitter and Facebook have been forced by courts to disclose the personal details of a person who holds an account when that court has compelled Twitter or Facebook to do so. You also cannot hide behind your ISP either. They too have been subpoenaed to produce users’ details when courts have required them to do so.

For those that blog for publications, its also important to remember that not only you as an individual writer but the organisation for whom you are writing could also be liable for the content that you are writing.

What Are My Defences?

When is defamation okay? Well, in some circumstances, you may be able to defend the statements that you have made which have caused reputational damage.

Many times I am confronted with people who have potentially defamed someone, saying “but its the truth! It actually happened!” Yes, defamation can be defended with “truth” but it is not an easy defence to use. When you seek to use the “truth defence”, it opens you up to a very rigorous process of proving to a court that “on the balance of probabilities”, what you say happened actually happened. This means collecting evidence, subpoenaing witnesses, obtaining expert reports and so forth. It usually means that there will be a lengthy trial so that the evidence is tested. Therefore, when we talk of the “truth defence”, we speak of it being something quite hefty to rely on.

You can also defend a defamation action on the basis that it was “opinion” or “satire”. If you have been following the news lately, Chris Kenny (a journalist) has been in a battle with ABC and the Chaser because of images showing him to be having sex with a dog. Chris Kenny and ABC ultimately settled the matter before reaching court, however, it was important because it looked into just how much “satire” can be used before it becomes incredibly dangerous to someone’s reputation.

Your opinion also only allows you to say so much. If your opinion is found to be malicious, its unlikely the court will favour you with this defence.

Some Handy Tips

– Keep your disputes with people offline! If you have an issue with someone, speak directly with them.

– If a criminal act has been committed, speak directly with the police, or if you do not feel comfortable with speaking with legal authorities, speak with a lawyer who you feel comfortable to speak with, or your local sex worker support service such as SWOPnsw (http://www.swop.org.au/) or Scarlet Alliance (http://www.scarletalliance.org.au/).

– Do not retweet other people’s possibly defamatory comments, it can land YOU into trouble.

– Do not even “hint” at incidents which may have happened. Even imputed comments may be libellous.

Where Can I Find More Information?

Firstly, you can come to me if you are concerned about defamation. However, I found a really good book called “Blogging & Tweeting Without Getting Sued”, published by Mark Pearson, an academic at Bond University. The book is published by Allen & Unwin and looks not only into defamation but issues such as data retention, confidentiality and privacy. (http://www.amazon.com/Blogging-Tweeting-Without-Getting-Sued/dp/1742378773/ref=sr_1_1?ie=UTF8&qid=1420012671&sr=8-1&keywords=blogging+and+tweeting+without+getting+sued)

KVA

@KVALEGAL

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One thought on “Twitter and Facebook – The Risks Of Outrage – Defamation

  1. I think two salutary cases are worth keeping in mind as to what a minefield defamation can be and the relative expense of preparation before one even gets anywhere near putting their arguments before a judge (or sometimes a jury).

    The first involved the famous and flamboyant entertainer Liberace, who was accused (“outed”?) in the English press as being a homosexual. Liberace sued for defamation. Unlike other types of civil cases, the Plaintiff (in this case, Liberace) is not required to prove that the statement was untrue. Indeed, the Plaintiff’s burden is to show that a statement was made, it was made to a third party and the statement could reasonably be interpreted as having a defamatory meaning. It does not matter whether to maker of the statement had an entirely different meaning in mind.

    At that point, the trial shifts its focus to the defendant to show that the statement was true or that one of the other defences applies.

    InLiberace’s case, he won and was awarded considerable damages.

    The second case involved Australia’s Dick Smith who was viciously attacked on an on-line aviation forum blaming him for certain perceived inadequacies and risks to safety flowing from a decision made by CASA (Civil Aviation Safety Authority) of which Dick Smith was the Chairman (or recently retired as Chairman).

    In any event, Dick was outraged that his good name had been besmirched accusing him of risking people’s safety and lives.

    Naturally, like this blog, the attacking posts were made by an anonymous member using a pseudonym. But this did not deter Dick. He was on a mission to “out” the person behind the pseudonym.

    Without going into chapter and verse as to how it’s done, I can assure you that very rarely is a poster truly anonymous. It’s just a question of how much money someone is willing to spend to track them down.

    And track them down Dick certainly did. The cost to him to discover the poster’s true identity? Approx $30,000. And that was some 10 years ago.

    But Dick is not a spiteful man wanting his pound of flesh. Dick, was prepared to settle the matter without going to Court in exchange for a public apology; and reimbursement of the $30,000 he had spent.

    Dick got his settlement terms.

    So, the moral is – you are never as anonymous as you truly think you are.

    The best advice I can give, is to stick to the facts and don’t try to be tricky by window dressing your poison words with “I think” or “I believe” or “I’ve been told”. It want wash.

    Happy tweeting, blogging and facebooking. Just keep it simple and nice.

    Don Quixlong

    ps. not my real name but I am a real lawyer with more than seven years’ experience in Defamation law, representing one of Australia’s largest online forums and dealing with defamation threats at the rate of one every two weeks (on average).

    Like

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