Digital defamation is on the rise and you need to know how to manage it

Digital defamation recently made headlines on the national stage thanks to a Brisbane beauty salon, when its owner was awarded more than $80,000 in damages for a defamatory Instagram story.

If you aren’t up to speed with laws around defamation and particularly defamation online, we don’t blame you. But as a beauty business owner it’s worth learning about it to make sure that you can spot it if it happens to you and take steps to deal with it to keep your reputation intact online. After all, the internet is where all the eyeballs are, and it’s more likely than not your first point of contact with potential customers.

For many small businesses and sole proprietors the reputation of the business is inextricably linked to that of the founders or owners, says Bill Swannie, lecturer in media law at Victoria University. “A business may be strongly linked to the reputation of certain people, such as its founder or proprietor. Therefore, damage to the individual’s reputation may harm the business name.”

Swannie and Perth lawyer and Lynn & Brown Director Steven Brown both point out that only individuals can sue for defamation but, says Brown, “corporations… can, however, avail themselves of a similar cause of action called ‘injurious falsehood’.” So keep your eyes open for comments and posts against both you and your business.

What is digital defamation?

What is digital defamation? Swannie says “Defamation can take any form – spoken, written, images, etc. Legally, defamation is any communication that is likely to lower a person’s reputation in the eyes of an ordinary person.” He says the most common channels on which you see this happening are the usual suspects – Facebook, Twitter, Instagram et al. And it’s risen in tandem with the rise in social media use says Swannie, and with it the ability to potentially damage someone’s reputation (or have yours damaged) at the click of a button. Carolyn Dorrian, Director of Dorrian and Co. says “Increasing access to online sources in recent years, particularly social media have significantly increased the ease and speed at which unverified communications can be made and shared. Consequently, the reputational damage is occurring at a much faster rate then previously.” 

Digital defamation on the rise

Brown says there are few defamation cases overall that make it to court in Australia, but the percentage that are digital defamation cases has jumped from 17% in 2013 to more than half of all cases now. “These statistics indicate that digital defamation is increasingly becoming an issue,” says Brown “which can probably be attributed to a growth in social media use. Between 2013 and 2017, 16 defamation cases involved Facebook posts, 20 involved emails, four involved tweets and two involved texts.”

“Instagram is currently the most common platform for trolls and digital defamation at the moment,” says Dorrian. “The most common platforms for digital defamation include social media platforms… websites, searching tools as Google, opinion platforms as blogs, review and feedback sites. Conventional communications as emails and text messages can still be a source for defamatory content, but they are less common.”  

What can I do to prevent it?

All the experts agree that with any business operating in this new digital landscape it’s your responsibility as a business owner to monitor online channels and mentions of you and your business and to act fast if you notice anything defamatory said about you, or, indeed, if you find any comments left on your channels by third parties that could be considered defamatory (a separate issue we’ll address in an article about how to safeguard your business against accidentally committing defamation).

Brown says “You must monitor your social media platforms for any harmful comments made about your business and act quickly. Further, in light of the recent court findings, you need to immediately address the situation if anyone leaves defamatory comments about another person or business on your own social media posts.

There’s some benefit to being prepared for something like this as well. Even if it doesn’t seem likely to happen, legal costs, if unanticipated, could be too high for many small business owners to shoulder if they do find their founder being defamed or the business being subject to injurious falsehood. Dorrian believes “All business, regardless of size and industry should ensure they have a risk management plan which includes the risks associated with the publication of defamatory content. This can include: 

  • checking insurance policies are inclusive of the costs of defamation, injurious falsehoods or contraventions to Australian Consumer Law. 
  • Having internal business policies for moderating and responding to content on digital and social media.
  • Training on business policy on digital content amongst the business and its employees. 
  • Seeking legal advice on appropriate measures before an incident arises.”

What can I do if I’ve been defamed online?

Act fast (within one year of publication of the offending material), keep records, seek counsel and official removal of the offending post(s). Don’t wait, or you will miss your window of opportunity and the longer something defamatory stays online the more damage it’ll do to your reputation and that of your business, even if it’s false.

Brown says “Keep all evidence and create a list of the dates, times and comments that are being made. Then contact a lawyer who can submit a ‘concerns notice’ to the other side. A ‘concerns notice’ under the Defamation Act requires the other party to retract and apologise for their statement.” Often removing the post and an apology from the person who posted it are enough. But, says Brown, “If no apology is forthcoming, you can proceed to court.”

If the defamatory item is on social media or another publisher platform, it’s also worth using the reporting tools provided to seek removal of the post, since, per Australian law, companies are now responsible for any defamatory content posted on their channels by third parties too. “Defamation law requires publishers review or verify sources of information in the event of a complaint from a person or business. If there is an evident risk of defamation,” say Dorrian, “a party can: Take a screenshot or record of the offending material and bring your concerns of defamation to the attention of the publisher and request that they retract or amend the material and provide a public apology addressing the content as inaccurate.” 

With social media, particularly of the ephemeral variety (i.e. disappearing), screenshot everything and save it with the rest of the evidence you have collected. Don’t expect a post to still be online later.

With the changes to the Defamation Act in 2020 there are new caps on damages awarded. Legal fees, even before you go to court, can be costly, so it’s important to note that going to court is not the go-to option for even the most cashed-up small business. Dorrian says one of the changes being implemented is “The introduction of a serious harm threshold and a cap on non-economic damages: a person of business making a claim must prove the defamatory material has, or will likely cause both serious reputational harm and serious financial loss to their business. The amount compensable for intangible loss, that is, reputation alone, is also restricted.” 

Is it defamation or just not very nice?

Sometimes people write things online that aren’t very nice. In fact, sometimes it seems like most of what’s on the internet is pretty awful. But a bad review of your business or a re-telling of an unpleasant (yet real) interaction isn’t necessarily defamatory, as much as it might sting.

There are plenty of ways to deal with bad yet truthful reviews or comments about you personally that just seem plain snarky. Brown says “It is important to keep in mind that not every ‘bad review’ is necessarily defamatory, or an injurious falsehood. For something to be defamatory it has to be false, so if what it said about your business is true, then it can’t be defamatory. This can also be the case where it is clear that a comment is simply somebody’s opinion that they are not holding it out as being fact.”

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