Social Media Defamation Law Australia: Can You Sue?

The governing legislation for Defamation in Victoria is the Defamation Act 2005 (Vic) and corresponding Acts in other States and Territories. Defamation is the publication of material about a person which causes serious harm to an individual’s reputation, either professionally or personally.

When this publication occurs online it’s usually called online or social media defamation. The publication can include communication to at least one third party and covers social media posts, videos, comments, reviews and messages.

The previous distinction between libel and slander has now been abolished, so any online written content and spoken content (for example a video defaming someone) are treated under a single statutory framework.

The Defamation Act 2005 (Vic) operates concurrently with common law principles, which have been adapted to deal with the development of social media platforms such as Facebook, Instagram, Twitter, TikTok, Google reviews and any other social media platform.

The Courts have consistently held the view that reputational harm online can have profound ramifications because of the ease of widespread sharing and permanence of the content, particularly where publications are rapidly disseminated beyond the original audience.

In the case of BeautyFull CMC Pty Ltd & Ors v Hayes [2021] QDC 111 the District Court of Queensland found that the Defendants Instagram story and other online communications were defamatory of all four plaintiffs [1]. Judge Reid held that each of the publications posted by the Defendant, which included Instagram stories, a phone call and a Facebook conversation conveyed defamatory imputations about the cosmetic medical clinic, being BeautyFULL CMC Pty Ltd, the founder and the founder’s two children. The imputations conveyed, were found to be intentionally false, baseless, motivated by anger and resentment, and caused hurt, distress and loss of business reputation to the plaintiffs.

The Court awarded damages to each plaintiff, totalling around $80,000.00. The defendant was further restrained from publishing, by any means including on all social media platforms, any further material having the effect of defaming the plaintiffs.

Notably, this is the first Australian Defamation case, whereby the judgement dealt specifically with Instagram stories, enforcing that even temporary social media posts and content can still be subject to a Defamation claim.

Serious Harm Test – Can you Sue?

To have a claim in social media defamation, the plaintiff must prove four key elements, which include, publication, identification, imputation and serious harm, as outlined in Section 10A of the Defamation Act 2005 (Vic) [2]. If these elements are met, it is arguable that a plaintiff will have a strong claim in defamation.

Publication

• The matter complained of must have first been published to someone other than the plaintiff, which typically occurs when the social media content is downloaded or viewed by others online. 

Identification

• The publication must identify the plaintiff, either by name, image, social media name, or by circumstances which make them reasonably identifiable to someone or people who know them.

Imputation (Defamatory meaning)

• The publication must reasonably convey imputations that cause an ordinary reasonable person to think less of the plaintiff. These include, among other things, that the plaintiff is dishonest, has engaged in professional misconduct is in competent, or has broken the law. The imputations form the core of the defamatory matter.

Serious Harm

• The fourth element a plaintiff must satisfy, is that the publication has caused, or is likely to cause, serious harm to their reputation, or cause significant financial loss for an excluded corporation.

• The “serious harm” threshold, introduced by recent Defamation Amendment Acts across most jurisdictions, operates as a filtering device that allows courts to dismiss minor or purely “backyard” social media disputes without the need for a full trial.

• When deciding whether serious harm is established, courts consider matters such as how grave the imputations are, the nature and size of the audience, any evidence of sharing or “grapevine” spread, and whether there is actual or probable impact on the plaintiff’s employment, social relationships or financial position.

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Authored by Aly Deane of KPA Lawyers.

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Aly is currently assisting on a range of matters including employment litigation, commercial lease disputes, franchise agreement disputes and litigious contract disputes.

Clients can expect a reliable and focused contributor who works diligently and communicates clearly. Aly supports the senior lawyers in the team across all stages of a matter, including legal research, document drafting, preparing court documents and briefs to counsel, and assisting with the day-to-day management of files. Her experience working at Gadens Lawyers in property and at Minter Ellison in employment law has given her exposure to a broad range of legal work and a strong grounding in the standards of professional practice.