Defamation and small business in technology driven world

Defamation exists to protect an individual’s reputation (or in certain circumstances, a company’s reputation) by restricting the conveying of false information through any written medium, photographs, broadcasts and the internet which are likely to injure the person’s (or company’s) reputation or standing in the community. However, an action for defamation must also be balanced against an individual’s right to freedom of speech. There is no “one size fits all approach” to applying the law of defamation. Such cases are not simple and are heavily determinant on the individual facts of each matter.

An action for defamation is only sustainable against an individual or a company with the equivalent of less than 10 full-time employees. If your company has more than the equivalent of 10 full-time employees, an action for defamation may not be accepted by a Court.

One could argue that the law of defamation stifles free speech and muzzles the inquisitive journalist. On the contrary, it puts the onus on the journalist to get their facts right before publication. The clarion call of “publish and be damned” is no defence in an action for defamation.

Defamation can be damaging to your reputation and may have implications on your work or profession or business. While the law protects your reputation and can restrict defamatory material from being published, the damage may already be done once defamatory material has been published and left unattended.

So, in an ever-changing technological world, where more businesses are moving their operations online and using social media to promote their business, the tort of defamation is a consistent risk for individuals and small businesses. Consumers have instant access to businesses online ventures and social media. Negative online commentary is all too common and is a simple way for consumers to provide almost instant feedback to businesses.

But what can you do if you think you have been defamed whether online or otherwise.

1. Respond to the comment and confirm any relevant facts. If you can reach a commercial solution with your alleged defamer. This is, by far, the least expensive solution. If you resolve the complaint online, your other customers will see that commitment!
2. For defamatory material published on social media and if the review/recommendation/comment/post is false, fraudulent or without merit, you should report it to the social media provider. The review/recommendation/comment/post may be removed by the provider.
3. If your other clients are willing, have them provide you with positive reviews. It’s your overall rating that matters!

A claim in defamation is not straightforward. For example, a Victorian man successfully sued Google in 2012 claiming that a search of his name brought up stories about an unsolved shooting causing damage to his reputation and leading him to be ostracised in his migrant community.

If it can be proven that you have been defamed, the court may award you damages and compensate you for the damage done to your reputation resulting from the defamatory statements or illustrations.

Before January 2006, the law governing actions in defamation varied from state to state across Australia. From 1 January 2006, the Uniform Defamation Laws were implemented to ensure continuity across all states and territories. The uniform laws define defamation as:

• The publication of any false imputation concerning a person, or a member of their family, whether living or dead, by which (a) the reputation of that person is likely to be injured or (b) they are likely to be injured in their profession or trade or (c) other persons are likely to be induced to shun, avoid, ridicule or despise them; and

• Publication of defamatory matter can be by (a) spoken words or audible sound or (b) words intended to be read by sight or touch or (c) signs, signals, gestures or visible representations, and must be done to a person other than the person defamed.

The legislation which applies in New South Wales is the Defamation Act 2005 (“the Act”). The Act came into force on 1 January 2006. The Act relates to the tort of defamation at general law.

Prior to commencing defamation proceedings, the relevant jurisdiction to hear the matter must be correctly identified. Once the jurisdiction of the court has been effectively invoked, it has ‘accrued jurisdiction’ to determine the whole ‘matter’ or controversy between the parties.

The defences available include the defence of justification, absolute privilege, honest opinion, qualified privilege, offer of amends, illegality and triviality. The Act preserves the defences available for defamation at general law and in some cases extends the defences available including justification, absolute privilege, qualified privilege and comment.

If none of the preceding steps works, do not dally, you must seek urgent legal advice as a limitation period for commencement of an action in Court and there are certain elements that you must be able to prove.

Remember, although a Court may award you damages to compensate the damage suffered to your reputation, the best result may be to deal with the alleged defamation using the above steps. Given the length of time for court matters to be heard, an award of damages will not be granted until long after the defamatory materials have been published and no doubt that will bring further cost, expense, and stress.

Please call us if you have any questions in relation to this article.

This article is for general information only and is not intended as legal advice. If you need specific help, please contact our office .