Macdonald, Sarah --- "Defamation And Social Media In Australia" [2021] UNSWLawJlStuS 19; (2021) UNSWLJ Student Series No 21-19

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DEFAMATION AND SOCIAL MEDIA IN AUSTRALIA

SARAH MACDONALD

I INTRODUCTION

This essay considers how Australian defamation law has been deployed thus far in the context of social media. A growing body of caselaw suggests a significant gap between what the law perceives as reputation and publication, and how these concepts exist online. The rapid advent of social media has fundamentally changed how humans interact and relate to one another. Today, billions of us communicate with other users across key networking sites such as Facebook, Twitter and Instagram. The new affordances of these platforms have enabled humans to ‘share’ their thoughts louder, further and more widely than ever before. This has had far-reaching consequences, not least in defamation proceedings.

In the first section, the essay provides a necessary overview of current defamation laws in Australia. Notwithstanding highly anticipated reforms which are due to commence in New South Wales from the middle of 2021, defamation laws reflect a pre-social media understanding of publication and reputation. As the following sections will discuss, this legal framework does not always apply readily to disputes involving online content.

In the second section, the essay moves to an examination of how current defamation laws interact with new social media-driven modalities of communication. Ways in which publication via social media differs from traditional publication include the potential for content to ‘go viral’ unexpectedly and the ease of publishing defamatory commentary. Social media has enabled us all to become publishers, regardless of whether we have the traditional benefits of editorial checks and balances and legal counsel.

In the third section, the essay examines recent examples of how the Courts have applied the law in defamation cases involving social media. One highly publicised case is Voller, where news publishers were considered liable for comments made by third parties on articles shared as Facebook posts. Christian Porter’s upcoming proceedings against the ABC, where the former Attorney General intends to use contextual social media activity to show that an article which did not name him effectively identified him, will also consider important questions about online liability.

Finally, the fourth section of the essay will discuss how reform could help to adapt this area of law to suit the modern context. As well as discussing measures which already form part of the upcoming reforms, such as the single publication rule and serious harm threshold, this section will also suggest novel measures which could reduce the number of trivial defamation claims being brought in relation to social media and help provide just, quick and cheap solutions to complaining parties. For example, an alternate dispute resolution process for minor claims could be introduced. More generally, commentators have also suggested that reversal of the presumption of damage would benefit defamation law.

Increasingly, news publishers rely on social media to disseminate content to their audience. Similarly, non-professional publishers are increasingly turning to social media sites to share defamatory comments about other individuals, businesses and groups. The caselaw of defamation proceedings relating to social media is therefore likely to grow. It is important to evaluate how Australian defamation law has grappled with social media so far and what the Courts’ decisions may mean for publishers and plaintiffs in future. In order to provide context for this discussion, the essay first turns to the current state of defamation law in Australia.

II AUSTRALIAN DEFAMATION LAW TODAY

Australian defamation laws were last updated to form a uniform regime in 2005.^[1] To place this date in context, Facebook launched its News Feed in 2006 and surpassed one billion users globally in 2012, seven years after the national uniform defamation laws were introduced.^[2] Whilst the introduction of uniform defamation laws was an improvement on the eight distinct bodies of law previously enacted across the nation,^[3] Rolph writes that introducing uniform laws meant merely that ‘discombobulation need not be limited to one particular jurisdiction, but might apply to Australian defamation law more generally’.^[4] This tone is reflective of widely held criticisms within the legal community concerning the distinctly arcane nature of defamation law. Legal commentators have critiqued defamation law for its complexity, technicality and artificiality.^[5] The reforms due to commence from July 2021 in New South Wales, Victoria and South Australia will hopefully go some way toward remedying these problems. However, some commentators are concerned that the reforms do not sufficiently address the issues facing individuals involved in smaller defamation proceedings.^[6] This section will outline defamation law as it exists in Australia today, including key criticisms levelled against these laws.

Australian defamation law is an obscure area of law.^[7] It derives from a combination of complex, ancient English laws and newer laws developed independently across the Australian colonies.^[8] Prior to 2005, the Australian states and territories had never succeeded in achieving a national body of defamation law. This was partly due to the fact that the Commonwealth Parliament did not have constitutional power to legislate with respect to this area of law.^[9] However, the task of reforming defamation laws was also hindered by a lack of political impetus on the part of the states and territories.^[10]

Accordingly, the 2005 reforms were a significant step in the development of Australian defamation laws. Prior to this point, legislation across the nation comprised eight different bodies of law. In a nation as large as Australia, this pluralistic system resulted in unnecessarily complex and costly legal proceedings.^[11] The introduction of uniform laws simplified the law and helped to prevent the practice of ‘forum shopping’.^[12] However, Rolph argues that the reforms prioritised the goal of uniformity over substantive change.^[13] Despite successfully introducing substantial uniformity, defamation laws remained reminiscent of their historical origins.^[14] This was partly due to the haste with which the uniform laws were agreed upon and passed, in order to prevent the then Attorney General from passing a less desirable national ‘defamation code’.^[15] Further, the reform process relied heavily on the Australian Law Reform Commission’s report ‘Unfair Publication: Defamation and Privacy’, which was released in 1979.^[16] Unsurprisingly, important developments in defamation law had occurred in the 26 years between the release of the report and the introduction of the reforms. The rapid expansion of the Internet and social media in the years since 2005 has heightened the need for modernisation.

Because the 2005 reforms were the result of collaboration between the Australian states and territories, they have proved difficult to change.^[17] However, further national reforms are now set to commence in some states in the middle of 2021.^[18] Whilst the staggered uptake of the reforms may temporarily undo the uniformity of Australian defamation law,^[19] they may help to address some of the criticisms described below.

One key criticism of defamation law is that it is unduly technical. This is due to the prolixity of pleadings, which has led defamation pleadings to be described as ‘trial by interlocutory ordeal’.^[20] Protracted pleadings can delay trials, thereby reducing plaintiffs’ prospects of restoring their reputations in a timely manner and failing to protect defendants’ free speech.^[21] Another criticism is that defamation can be characterised as a fundamentally artificial tort.^[22] This criticism extends beyond the technicality of pleadings. For example, the single meaning rule means that a single meaning must be ascribed to the published material.^[23] Whilst this may stem from the practical requirements of defamation proceedings, it nevertheless perpetuates the fiction that everyone who reads a text will grasp the same meaning. This proposition becomes even more untenable in relation to texts published on social media, where ‘context collapse’ occurs. ^[24] Context collapse is the convergence of various different social worlds on a single platform, which may lead different users to assign different meanings to the same material. Another aspect of defamation law’s artificiality is the emphasis placed upon the objective potential for reputational harm, rather than the actual harm sustained by the plaintiff.^[25] This results in an artificial relationship between remedies and actual harm in defamation proceedings. Finally, a third criticism is that defamation law is extremely complex. As described above, this is largely due to defamation law’s historical origins.^[26] Over time, defamation laws have accumulated subject to little revision or rationalisation.^[27] The resulting body of law may be challenging for plaintiffs to access and understand. Similarly, defendants may struggle to successfully defend claims against them.

These criticisms are important to note in relation to the current state of defamation law in Australia. In order to understand the fresh challenges that social media poses to defamation law, it is important to first understand the roots and pre-existing weaknesses of this area of law. Australian defamation laws are the result of a long and complex history, merging ancient English laws with newer laws from the Australian colonies. This history has ultimately bestowed upon Australia a highly technical, artificial and complex body of law. Since defamation laws were last reformed in 2005, the media landscapes they preside over have changed dramatically. Whilst the upcoming reforms may help these laws adapt to new modes of publication, distribution and communication online, this essay argues that defamation laws still require further recalibration. The following section will briefly outline the ubiquity of social media and discuss how defamation laws currently interact with new social media landscapes.

III DEFAMATION LAW, SOCIAL MEDIA AND ONLINE PUBLICATION

As the section above discusses, defamation laws were largely developed before the Internet facilitated major changes to publication and, more generally, human communication. This section of the essay will discuss how these older laws have interacted with new social media landscapes thus far. For many businesses and public figures, maintaining a social media presence is now a key means of advertising, communicating with target audiences and building brand value. The ubiquity of social media has pushed the issue of defamation law to the fore in recent years, with the number of cases concerning defamation via social media continuing to grow.^[28] Given that this type of defamation proceedings is becoming increasingly prevalent, it is important to consider how the issues that arise in these proceedings differ from defamation cases concerning ‘traditional’ modes of publication. First, this section will discuss social media’s novel capacity for virality, which allows publications to spread at unprecedented speeds via ‘the grapevine effect’.^[29] Second, it will discuss the impact of anonymous and non-professional publishers on social media.^[30] Grievances which might once have been aired across a backyard fence now occur on social media, only to become the subject of subsequent defamation proceedings.

Before discussing how defamation laws apply to social media, it is important to begin with a brief overview of social media itself. Social media platforms such as Facebook and Twitter are ‘Web 2.0’ platforms, a term which distinguishes platforms relying on user-generated content from their earlier ‘Web 1.0’ counterparts, which functioned more like online bulletin boards and publications.^[31] The ability for users to collaborate and publish material online has led to defamation proceedings arising from circumstances which did not exist pre-social media. User-generated content on social media can be published easily, spreads widely and often blurs the demarcation between public and private spheres.^[32] Whilst many social media defamation proceedings relate to major platforms such as Facebook and Twitter, less well known consumer review websites have also featured in cases.^[33] In 2017, the Australian Bureau of Statistics reported that over half of Australian businesses had a web presence,^[34] and an estimated 80% of Australians use social media.^[35] These figures indicate just how far reaching defamatory claims made on social media can be.

Defamation proceedings involving social media differ from those involving traditional media in several ways. One such difference is the potential for defamatory material to ‘go viral’ on social media, which results in the material spreading far beyond its initial audience via the ‘grapevine effect’.^[36] The grapevine effect refers to how far defamatory remarks travel once released into the world. This effect was described in Ley v Hamilton: ‘it is impossible to track the scandal, to know what quarters the poison may reach’.^[37] Whilst the grapevine effect is by no means new, it has been amplified dramatically by social media. The Courts have recognised that defamatory materials on social media ‘have the capacity to ‘go viral’ more widely and more quickly than ever before’.^[38] The nature of social media connections also means that the grapevine effect may be more harmful to plaintiffs on platforms such as Facebook than it would otherwise be.^[39] In Dabrowski v Greeuw, the Court noted that the people exposed to defamatory material via the grapevine effect were mostly the plaintiff’s Facebook ‘friends’, which included his acquaintances, family and friends.^[40] The reputational harm and distress caused to a plaintiff may be worsened by knowledge that defamatory accusations have been shared to people with whom the plaintiff is close. This is an important factor to consider in the assessment of damages for social media defamation proceedings.^[41] Conversely, however, Courts must consider how reputable social media posts are and how seriously they may be taken by those who view them. Whether social media posts should be given the same weight as professional news publications is an important question.

Another new factor in social media defamation proceedings is the ease with which anyone can publish anything online, anonymously and instantly. This has multiple implications at both the pre-trial and trial stages. Pre-trial, social media has the potential to preserve in time what might otherwise have been throwaway comments. Before social media, arguments between acquaintances which degenerated into defamatory accusations may have occurred in person and been quickly forgotten. Following his $340,000 victory after being called a thief on Facebook, the plaintiff in Polias v Ryall said that, ‘[p]eople should be very careful about what they write on social media because it spreads like wildfire and ... it stays on Facebook for a long time’.^[42] Further, the online environment may increase the likelihood of people making defamatory accusations in the first place. The affordances of platforms such as Facebook and Twitter create an ‘online disinhibition effect’, which means that individuals communicate differently online compared to how they would in person.^[43] Factors that contribute to this effect include anonymity, invisibility and asynchronicity: users do not have to expose their real identities, do not have to be seen or see the reactions of other users and do not communicate with others in real time. ^[44] Of these pre-trial factors, the ease of maintaining anonymity has particularly challenging implications once the defamation trial commences. There have been several instances of plaintiffs attempting, with varying degrees of success, to uncover who is behind anonymous defamatory reviews posted online.^[45] If plaintiffs are unable to unmask their defamers, they are unlikely to find recourse in the Courts.

Social media is now a pervasive means of communicating, sharing information and brand building for Australian individuals and businesses. Online defamation differs from offline defamation as a result of several factors. People are more likely to act with less inhibition and may say things on social media that they would not say in ‘real life’. Unlike real life, comments made on social media are recorded in perpetuity. Finally, these comments have the potential to go viral and spread far beyond their initial audience via the grapevine effect. Together, these factors all contribute to more numerous and severe defamation matters finding their way to the Courts. It is important to review how these issues have been approached so far in the growing body of social media defamation caselaw. The following section of the essay will summarise the recent decisions of relevant defamation cases relating to social media.

IV KEY CASES

So far, the essay has discussed the broader context of defamation law as it currently exists and how defamation that occurs on social media platforms differs from more traditional types of defamation. The essay will now consider the actual outcomes of recent cases relating to these issues. Despite the relatively short period of time in which social media use has been prolific, there is already a considerable body of defamation caselaw relating to it. This section will summarise some of the key cases relating to social media defamation in Australia and discuss the legal principles they are beginning to establish. The cases illustrate where reform may be needed to help defamation laws resolve this kind of dispute more quickly and justly.

One of the earliest substantial social media defamation cases was Mickle v Farley, decided in 2013.^[46] In the case, a teacher at a regional New South Wales high school was awarded compensatory and aggravated damages in the sum of $105,000 with costs.^[47] The defendant, aged 20 at the time of the case, was a former student at the school and had never been taught by the plaintiff. Nevertheless, he posted a number of defamatory comments about her on his Facebook and Twitter pages. At the time, the defendant had 63 followers on Twitter.^[48] Upon learning of the comments, the plaintiff left on sick leave and had only returned to work on a limited basis by the time of the proceedings.^[49] In making his award of damages, Elkaim DCJ stated that the ‘evil’ of defamatory communication via social media ‘lies in the grapevine effect’.^[50] The case has been upheld as a warning to careless social media users.^[51] However, it also represents an alarming disconnect between how defamation laws and social media users view content on social media. Many social media users view their profiles as informal, personal spaces. The law disagrees. The defendant in this case was certainly not the first high school leaver to express strong feelings about a former teacher. However, he may have been the first to face such a costly penalty for doing so.

A year after Mickle v Farley, Bowden DCJ also cited the grapevine effect in Dabrowski v Greeuw.^[52] In this case, the plaintiff brought a claim against his former partner over an allegedly defamatory Facebook post in which she accused him of domestic violence. The defendant was unable to adduce independent evidence in support of the claim and so was ordered to pay her former partner $12,500. This case seemingly grappled with its social media context with slightly more nuance than Mickle v Farley: Bowden DCJ said that ‘doubts about the character of Mr Dabrowski would still exist but they would not be as grave as if the defamatory post had been published in a reputable newspaper. However, the grapevine effect could mean that the defamatory imputations are repeated without revealing that the source was a Facebook post made by an estranged wife’.^[53] The former point recognises the informal, fickle nature of social media publications. The latter point, however, fails to adequately acknowledge the extent to which comments on social media are connected to their authors’ personal profiles. As the parties had been married for eighteen years and shared children, their connection on social media would likely be known to their respective Facebook friends and perceptible to viewers on the periphery of their shared network. It seems probable that the dispute in question could have been better resolved without turning to formal, expensive and time-consuming legal proceedings.

In a controversial 2018 High Court decision, Trkulja v Google LLC raised questions about whether internet service and search engine providers can be held liable for the content they ‘publish’.^[54] The plaintiff, an innocent man who was injured in underworld crossfire, was shocked to discover that his picture appeared in Google search results alongside the criminals responsible for his injury. He claimed that the search results indicated that he was connected to prominent Melbourne gangsters, thereby defaming him. The dispute eventually reached the High Court, where it was held that an ordinary reasonable person could infer that Mr Trkulja was connected to the criminal underworld and that it was ‘strongly arguable’ that Google published the material.^[55] As the appeal was from a summary dismissal, The High Court’s decision was limited to the question of whether the Court of Appeal had erred in concluding that the matters were incapable of conveying the defamatory imputations.^[56] However, it nevertheless leaves questions open in relation to intermediary liability. Whilst there is emerging case law in this area, the High Court has yet to set out a general approach. If Google is held liable, it could open the doors for countless others hoping to sue for defamation. How carefully Google should, or even can, monitor its search results has real implications for free speech. This is especially true where allegedly defamatory search results or suggested search terms relate to reporting of matters in the public interest, such as violent criminal activities.

Last year, the New South Wales Court of Appeal considered a similarly controversial decision in Voller.^[57] In the primary judgment, Rothman J classed news outlets as primary publishers of defamatory comments by third parties on their Facebook pages.^[58] As primary publishers, the defence of innocent dissemination would not have been available to the three news outlets named in the case.^[59] Rothman J stated that each defendant had ‘provided the forum ... and encouraged, for its own commercial purposes, the publication of comments’.^[60] Without question, users’ engagement with social media content is what allows the content to spread and reach new readers. With the traditional media industry in crisis, this digital engagement is necessary for media companies’ survival. However, commercial purposes may exist ancillary to news dissemination in the public interest. The primary decision meant that news outlets would be liable as soon as third parties posted defamatory comments under their article posts. This has extremely troubling implications for free speech, especially given that public Facebook pages cannot disable comments on their posts. Accordingly, under the primary judgment, public interest journalism would have faced constant exposure to lawsuits. The Court of Appeal held that the defendants were publishers, but went no further than that, meaning that the case will now need to be determined in the Supreme Court. In a joint statement, the defendants said that this result demonstrated Australian defamation law was ‘completely out of step with the realities of publishing in the digital age’.^[61] The final outcome of this case will have major implications for any person or organisation with a public Facebook page.

Finally, the upcoming defamation proceedings between former Attorney General Christian Porter and ABC journalist Louise Milligan together with the ABC also seem likely to raise novel questions about defamation via social media. Mr Porter, who has previously said that the uneven playing field between digital platforms and traditional media in defamation law ‘is something that needs to be dealt with as urgently as possible as a matter of reform’,^[62] plans to use existing defamation laws to claim that he was indirectly identified in an article that did not name him. In his statement of claim, Mr Porter’s lawyers claim that this identification was evidenced through his name trending on Twitter and comments by third parties on the article shortly after its publication.^[63] In response to the primary judgment in Voller in 2019, Mr Porter said that newspapers being held liable for comments by third parties on their Facebook pages was ‘clearly something that needs to be dealt with’.^[64] If Porter is successful, the case has the potential to further chill freedom of speech in public interest journalism, both via self-censorship at the prepublication stage and post-publication legal repercussions.^[65] Mr Porter’s claim argues that the article’s references to a ‘senior minister’, combined with the timeline of the events, allowed members of the public to deduce his identity. However, the level of seniority of a member of government who has been accused of rape is clearly a matter of public interest. Although omitting this detail may have afforded the ABC stronger legal protection, doing so would have been a blow to public interest journalism.

The cases above illustrate how defamation laws have been applied in social media matters relating to both personal disputes and professional journalism. The first two cases related to personal disputes aired via social media. In both cases, a large sum of damages was awarded for material shared on individuals’ social media profiles within their personal networks. As the number of social media defamation cases grows, these cases have the potential to strain the justice system. Resolution via the Courts may also serve to exacerbate disputes between parties, prolong stressful situations and cause serious financial hardship to unsuccessful parties. The last three cases related to online liability and public interest journalism. These cases have potentially far-reaching consequences for search engines, news outlets, journalists and public pages on social media. The outcomes suggest that judges in Australia will interpret defamation laws strictly and enforce problematic expectations of what responsible journalism entails.^[66] The following section of the essay will discuss how upcoming defamation reforms may help to address these issues and propose new avenues of reform.

V UPCOMING AND POTENTIAL REFORMS

The history of defamation law and the outcomes of recent cases relating to social media suggest the need for reform. Currently, a first wave of defamation law reforms is set to commence on July 1 in three states, with a second wave under discussion. This section will discuss these reforms and propose several possible areas of additional reform in relation to two key issues. The first issue is the resolution of minor, ‘everyday’ defamation disputes. Reform in this area could encourage alternate methods of dispute resolution, such as mediation. Alternative dispute resolution could offer parties a faster, cheaper and more restorative process. This issue may also be addressed by the new serious harm threshold, which has been proposed as a way to prevent trivial claims from reaching Court. The second issue is the protection of public interest journalism and free speech. The upcoming reforms may help to correct the balance between vindication of reputation and free speech by introducing a new public interest defence, introducing a single publication rule and clarifying the cap on damages. Another way to address this issue could be to reverse the presumption of falsity in defamation proceedings.

Mickle v Farley and Dabrowski v Greeuw are both examples of personal disputes arising from vulnerable individuals making harmful comments publicly on their Facebook pages. Mr Farley was a regional high school leaver whose father had recently lost employment at the school due to his poor health. Ms Greeuw was in the process of leaving a long-term marriage in which she allegedly suffered domestic violence. Whilst these circumstances do not justify the defendants’ actions, they suggest that the combative environment of a courtroom may not have provided the best means of resolving the disputes. According to Richard Leder OAM, who represented Rebel Wilson in her recent defamation proceedings, ‘most people who are defamed are not in it for the money. Instead, they’re after a correction and an apology’.^[67] Providing defamed parties with a simpler way to obtain an apology, removal of the offending material and a correction could help to reduce the burden faced by the Courts and save parties time and money. In the lead up to the 2005 reforms, the federal and state Attorneys General considered introducing alternative remedies for defamation.^[68] However, this did not eventuate. As discussed above, the social media environment both enables individuals to make defamatory comments and preserves the evidence when they do. Defamation law holds these individuals to the same standard as professional news outlets, despite the fact that individuals do not have the same editorial checks, legal advice and journalistic training. The result is an increasing number of minor claims arising in circumstances which did not exist previously. Clearly, many individuals view social media as an informal space. Introducing a less formal dispute resolution process could help to close the gap between what individuals expect when they post to social media and what the law decrees.

The new serious harm threshold may help to address the issue of minor personal claims.^[69] Under the reform, only cases which meet the threshold may proceed to Court. The presiding judicial officer may determine whether the serious harm element is established at any time prior to trial. If they do not find that the element has been established, they may dismiss the proceedings.^[70] How the Courts will characterise social media publications such as ‘tweets’, ‘statuses’, ‘stories’, comments and posts remains to be seen. However, it seems plausible that social media publications distributed to a limited number of people will not always meet the required threshold. One criticism of the reform is that determining whether a defamatory publication caused serious harm necessitates a level of consideration akin to a trial.^[71] As such, it may make defamation trials longer and more expensive. Further, the serious harm element will replace the defence of triviality. How the reform will affect defendants’ ability to defend themselves in this respect if the element is successfully made out pre-trial is not yet clear. Despite these questions, the reform will hopefully help to keep trivial disputes out of the Courts and prevent unharmed plaintiffs from seeking damages.

Turning to the protection of public interest journalism and free speech, an important upcoming reform is the introduction of a public interest defence.^[72] Prior to this defence, no defence has explicitly protected public interest journalism.^[73] The defence will extend the current qualified privilege defence, which has so far proved mostly unsuccessful, and is broadly modelled on the United Kingdom’s public interest defence.^[74] Unlike the United Kingdom provision, which includes some additional protections for public interest publishers, the new Australian defence contains a list of factors derived from the qualified privilege defence. This departure from the United Kingdom provision means that past British cases cannot be used to predict how the defence will operate here in Australia. The Courts may interpret the new defence as narrowly as the qualified privilege defence has been historically. Whilst some commentators suggest that the lack of successful qualified privilege defences is due to ‘bad journalism’ and the ease with which a prospective plaintiff can determine whether the defence will succeed, this view underestimates the complexities of being a ‘responsible’ journalist.^[75] Had this new defence commenced prior to Mr Porter’s proceedings, it may have helped the ABC defend Mr Porter’s claims.

Another upcoming reform which may help protect journalists is the single publication rule.^[76] Currently, the law recognises the multiple publication rule.^[77] Under this rule, a new cause of action arises every time someone accesses material online.^[78] In effect, this leads to an ongoing statute of limitation. In turn, the prospect of litigation may lead news outlets to delete their archives. This is concerning, given that maintaining a public record of important news events is clearly in the public interest. The single publication rule mitigates this risk by establishing a limitation period which runs from the date of first publication, rather than its last download. Importantly, however, the single publication rule will not apply to a subsequent publication ‘if the manner of that publication is materially different’ from the first publication.^[79] How the Courts interpret ‘materially different’ remains to be seen. Given that tweets linking to articles have been held to be separate publications from the articles themselves,^[80] it seems plausible that social media posts shared after the initial statute of limitation commences could constitute subsequent publication.

The upcoming reforms also clarify that the cap on damages for non-economic loss cannot be set aside. In the past, this cap has sometimes been lifted when the Court has awarded aggravated damages.^[81] This has left litigants uncertain and led to increasingly large awards of damages. Whilst the reforms reaffirm the cap on damages for non-economic loss, however, they do not place a limit on aggravated damages. This means that where the Court awards aggravated limits, the cap on damages for non-economic loss effectively ceases to have an impact.

Finally, a reform which has long been called for but is yet to be introduced is the reversal of the presumption of damage in defamation law.^[82] This presumption makes it easier to commence a case and disadvantages the plaintiff from the outset. It also artificially separates defamation law’s protection of reputation from the actual experience of reputational harm.^[83] As a result, plaintiffs who suffered no real harm can succeed in Court and receive compensation. Reversing the presumption could help to ensure that only plaintiffs whose reputations are damaged have access to vindication.

Defamation laws have long been widely regarded as ripe for reform. The rapid advent of social media has left old laws struggling to adapt to new technology. Fortunately, upcoming reforms may address some of the issues that these laws face. A second wave of reforms, recently canvassed in a discussion paper, will focus specifically on the responsibilities of social media platforms and search engines.^[84] Whilst the reforms announced so far promise some improvements for minor disputes and public interest news outlets, they do not promise substantial change to all key issues. For example, reforms which introduce alternative remedies for individuals, a robust public interest defence and a firm cap on damages have not yet been achieved. Accordingly, defamation laws will likely require further development before they apply fairly, consistently and proportionately to proceedings relating to defamation by social media.

VI CONCLUSION

This essay has discussed how Australian defamation laws have adapted so far to changing social media landscapes. As social media platforms become increasingly important to news outlets’ business models, more high-profile defamation cases are likely to arise from circumstances involving these platforms. How these cases are decided will have long-lasting impacts upon free speech and public interest journalism. So far, the outcomes of social media defamation cases indicate that defamation laws have not yet adapted to new types of publication.

Legal commentators have long critiqued defamation law for its complexity, technicality and artificiality. These criticisms make sense in light of defamation law’s rich history. However, they continue to affect the operation of the modern body of law. Whilst the upcoming reforms may help to address some of the criticisms, the fact remains that defamation law has not been substantially overhauled in close to two decades. Despite the logistical and political difficulties of achieving a suitable uniform regime across all states and territories, the Australian jurisdictions should aim to achieve this.

Technological changes since 2005 have dramatically changed the matters to which defamation laws apply. The majority of Australian businesses and individuals now have an active presence on social media. For news outlets, social media is an essential means of disseminating content and reaching new audiences. The affordances of social media have also created new ways for individuals to publish material, interact publicly with news reporting and spread their views widely. The caselaw so far suggests that these affordances have yet to be reconciled with how the law has traditionally viewed defamatory publications. When aired on social media, personal grievances can circulate via the ‘grapevine’ and lead to substantial awards of damages. Such grievances are certainly not new, but their publication is. Social media also poses new risks to journalists and news outlets, who face uncertainty about damages, liability for third parties’ comments and unclear statutes of limitations. At a time when news outlets are already struggling to remain financially viable, these risks threaten public interest reporting and free speech. News outlets may choose to self-censor before publication or face costly litigation if they do not do so.

Some of the upcoming reforms will likely help to address these problems. For example, the introduction of the single publication rule and the serious harm threshold may help both professional news outlets and individuals avoid costly defamation litigation. However, the reforms fall short in some areas and do not address some important areas relating to social media. Hopefully, the second tranche of reforms will provide further clarity and protection for social media platforms and publishers.

Technology will continue to change, and social media is likely to become even more integral to personal communications and news dissemination. Part of the responsibility for improving how defamation laws apply to disputes lies with the Courts, who must interpret existing laws flexibly and reasonably in the context of new factual scenarios. However, the caselaw suggests that legislative reform is also needed to bring defamation laws into step with modern social media practices. Whether the upcoming reforms will achieve this remains to be seen.

VII BIBLIOGRAPHY

A Articles/Books/Reports

Bristow, Penelope, ‘#Trending: The Rise of Social Media and the Challenges for Australia’s Defamation Law’ (2018) 37(2) Communications Law Bulletin 19

Douglas, Michael, ‘‘Their Evil Lies in the Grapevine Effect’: Assessment of Damages in Defamation by Social Media’ (2015) 20(4) Media and Arts Law Review 367

Gray, Anthony, ‘Three suggested amendments to Australia’s defamation laws’ (2020) 45(2) Alternative Law Journal 94

Groshek, Jacob, and Cutino, Chelsea, ‘Meaner on Mobile: Incivility and Impoliteness in Communicating Contentious Politics on Sociotechnical Networks’ (2016) Social Media + Society 1

Ireland, Jennifer, ‘Defamation 2.0: Facebook and Twitter’ (2012) 17 Media and Arts Law Review 53

Lincoln, Siân, and Robards, Brady, ‘Being strategic and taking control: Bedrooms, social network sites and the narratives of growing up’ (2016) 18(6) New Media & Society 927

McClintock, Bruce, ‘Defamation Reforms: Much Ado About Not Much’ (2020) 70 Law Society of NSW Journal 66

Nicholas Olson, ‘Googling defamation law’ (2018) 47 Law Society of NSW Journal 84

Rolph, David, ‘A critique of the national, uniform defamation laws’ (2008) 16 Torts Law Journal 207

Rolph, David, Defamation Law (LawBook Co, 2016)

Suler, John, ‘The online disinhibition effect’ (2004) 7 Cyberpsychology & Behavior 321

B Cases

Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154

Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 WLR 1015

Dabrowski v Greeuw [2014] WADC 175

Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575

Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652

Ley v Hamilton (1935) 153 LT 384

Mickle v Farley [2013] NSWDC 295

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15

Trkulja v Google LLC (2018) 356 ALR 178

Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd

Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

C Legislation

Defamation Amendment Act 2020 (NSW)

Defamation Act 2005 (NSW)

D Other

Australian Bureau of Statistics, Summary of IT Use and Innovation in Australian Business (Catalogue number 8166.0, 14 June 2018)

Castelan, Justin, ‘Facebook and Twitter damages music to teacher’s ears: Mickle v Farley [2013] NSWDC 295’, Defamation Watch (Blog Post, 16 February 2015) <https://defamationwatch.com.au/facebook-and-twitter-damages-music-to-teachers-ears-mickle-v-farley-2013-nswdc-295/>

Conifer, Dan, and Snape, Jack, ‘Social media slurs could put Facebook in the courts under defamation push’ ABC (online, 20 November 2019) <abc.net.au/news/2019-11-20/facebook-twitter-social-media-defamation/11721864>

Conneller, Philip, ‘Australian Poker Pro Nicholas Polias Gets ‘Thief’ Defamation Award’, Cards Chat (Blog Post, 3 December 2014) <http://www.cardschat.com/news/australian-poker-pro-nicholas-polias-gets-thief-defamation-award-8533#ixzz3O7NwCpHV>

Facebook, Our History, (webpage) <https://about.fb.com/company-info/>

Joyce, Daniel, ‘Christian Porter's defamation action threatens to further chill public interest journalism’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/commentisfree/2021/mar/16/christian-porters-defamation-action-threatens-to-further-chill-public-interest-journalism>

Karp, Paul, ‘Christian Porter v ABC: can the minister sue for defamation over article that didn't name him?’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/australia-news/2021/mar/16/christian-porter-v-abc-can-the-minister-sue-for-defamation-over-article-that-didnt-name-him>

Mark Shumsky, ‘Social media defamation: be cautious when posting or re-posting online comments, reviews and links’, Stacks Law Firm (Blog Post, 13 August 2020) <https://www.stacklaw.com.au/news/business-disputes/social-media-defamation-be-cautious-when-posting-or-re-posting-online-comments-reviews-and-links/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>

May, Catriona, ‘Defamation and social media: when old laws meet modern tech’ (2019) 22 MLS News <https://law.unimelb.edu.au/alumni/mls-news/issue-22-november-2019/defamation-and-social-media-when-old-laws-meet-modern-tech>

Mills, Tammy, ‘Zarah Garde-Wilson loses bid to find who was behind bad Google reviews’, The Age (online, 18 March 2021) <https://www.theage.com.au/national/victoria/zarah-garde-wilson-loses-bid-to-find-who-was-behind-bad-google-reviews-20210318-p57byd.html>

Model Defamation Law Working Party, Review of Model Defamation Provisions – Stage 2 (Discussion paper, April 2021)

Pelly, Michael, ‘Media lose Facebook defamation case, mull appeal’ Australian Financial Review (online, 1 June 2020) <https://www.afr.com/companies/media-and-marketing/media-lose-facebook-defamation-case-mull-appeal-20200601-p54yar>

Statista, Active social media users as percentage of the total population in Australia from 2015 to 2021 (webpage, February 2021) <https://www.statista.com/statistics/680201/australia-social-media-penetration/#:~:text=There%20has%20been%20a%20continued,just%2058%20percent%20in%202015>

Todd, Robert, Perkins, Nick, Loxton, Imogen, and Talas, Ted, ‘In the Public Interest? Changes to the Uniform Defamation Law’, Ashurst (Blog Post, 16 September 2020) <https://www.ashurst.com/en/news-and-insights/legal-updates/in-the-public-interest-changes-to-the-uniform-defamation-law/>

Whitbourn, Michaela, ‘Uniformity at risk as defamation reforms set to start in three states on July 1’ Sydney Morning Herald (online, 1 April 2021) <https://www.smh.com.au/national/uniformity-at-risk-as-defamation-reforms-set-to-start-in-three-states-on-july-1-20210401-p57fu5.html>

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^[1] Defamation Act 2005 (NSW) (‘Defamation Act’).

^[2] Facebook, Our History, (webpage) <https://about.fb.com/company-info/>.

^[3] David Rolph, ‘A critique of the national, uniform defamation laws’ (2008) 16 Torts Law Journal 207, 207.

^[4] David Rolph, Defamation Law (LawBook Co, 2016), 1.

^[5] Ibid.

^[6] Michaela Whitbourn, ‘Uniformity at risk as defamation reforms set to start in three states on July 1’ Sydney Morning Herald (online, 1 April 2021) <https://www.smh.com.au/national/uniformity-at-risk-as-defamation-reforms-set-to-start-in-three-states-on-july-1-20210401-p57fu5.html> (‘Uniformity at risk’).

^[7] Rolph, Defamation Law (n 4), 1.

^[8] Ibid 52.

^[9] Ibid 54.

^[10] Ibid 55.

^[11] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 207.

^[12] Ibid 208.

^[13] Ibid 207.

^[14] Rolph, Defamation Law (n 4), 4.

^[15] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 208.

^[16] Ibid 245.

^[17] Catriona May, ‘Defamation and social media: when old laws meet modern tech’ (2019) 22 MLS News <https://law.unimelb.edu.au/alumni/mls-news/issue-22-november-2019/defamation-and-social-media-when-old-laws-meet-modern-tech> (‘Defamation and social media’).

^[18] Defamation Amendment Act 2020 (NSW).

^[19] Whitbourn, ‘Uniformity at risk’ (n 6).

^[20] Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 193 [22] (Kirby J).

^[21] Rolph, Defamation Law (n 4), 2.

^[22] Ibid 3.

^[23] Ibid.

^[24] Siân Lincoln and Brady Robards, ‘Being strategic and taking control: Bedrooms, social network sites and the narratives of growing up’ (2016) 18(6) New Media & Society 927, 928.

^[25] Rolph, Defamation Law (n 4) 3.

^[26] Ibid 4.

^[27] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 247.

^[28] Michael Douglas, ‘‘Their Evil Lies in the Grapevine Effect’: Assessment of Damages in Defamation by Social Media’ (2015) 20(4) Media and Arts Law Review 367, 369.

^[29] Penelope Bristow, ‘#Trending: The Rise of Social Media and the Challenges for Australia’s Defamation Law’ (2018) 37(2) Communications Law Bulletin 19, 22.

^[30] Whitbourn, ‘Uniformity at risk’ (n 6).

^[31] Jennifer Ireland, ‘Defamation 2.0: Facebook and Twitter’ (2012) 17 Media and Arts Law Review 53, 54.

^[32] Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15, 72.

^[33] See, eg, Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112.

^[34] Australian Bureau of Statistics, Summary of IT Use and Innovation in Australian Business (Catalogue number 8166.0, 14 June 2018).

^[35] Statista, Active social media users as percentage of the total population in Australia from 2015 to 2021 (webpage, February 2021) <https://www.statista.com/statistics/680201/australia-social-media-penetration/#:~:text=There%20has%20been%20a%20continued,just%2058%20percent%20in%202015>.

^[36] Mickle v Farley [2013] NSWDC 295, [21].

^[37] (1935) 153 LT 384, 386.

^[38] Cairns v Modi [2012] EWCA Civ 1382; [2013] 1 WLR 1015, [27] (Neuberger LCJ).

^[39] Douglas (n 28) 373.

^[40] [2014] WADC 175.

^[41] Douglas (n 28) 369.

^[42] Philip Conneller, ‘Australian Poker Pro Nicholas Polias Gets ‘Thief’ Defamation Award’, Cards Chat (Blog Post, 3 December 2014) <http://www.cardschat.com/news/australian-poker-pro-nicholas-polias-gets-thief-defamation-award-8533#ixzz3O7NwCpHV> .

^[43] John Suler, ‘The online disinhibition effect’ (2004) 7 Cyberpsychology & Behavior 321, 322.

^[44] Jacob Groshek and Chelsea Cutino, ‘Meaner on Mobile: Incivility and Impoliteness in Communicating Contentious Politics on Sociotechnical Networks’ (2016) Social Media + Society 1, 3.

^[45] Tammy Mills, ‘Zarah Garde-Wilson loses bid to find who was behind bad Google reviews’, The Age (online, 18 March 2021) <https://www.theage.com.au/national/victoria/zarah-garde-wilson-loses-bid-to-find-who-was-behind-bad-google-reviews-20210318-p57byd.html>.

^[46] (2013) 18 DCLR (NSW) 51; [2013] NSWDC (‘Mickle v Farley’).

^[47] Ibid [22].

^[48] Mark Shumsky, ‘Social media defamation: be cautious when posting or re-posting online comments, reviews and links’, Stacks Law Firm (Blog Post, 13 August 2020) <https://www.stacklaw.com.au/news/business-disputes/social-media-defamation-be-cautious-when-posting-or-re-posting-online-comments-reviews-and-links/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>.

^[49] Mickle v Farley (n 46) [12].

^[50] Ibid [21].

^[51] Justin Castelan, ‘Facebook and Twitter damages music to teacher’s ears: Mickle v Farley [2013] NSWDC 295’, Defamation Watch (Blog Post, 16 February 2015) <https://defamationwatch.com.au/facebook-and-twitter-damages-music-to-teachers-ears-mickle-v-farley-2013-nswdc-295/>.

^[52] [2014] WADC 175 (‘Dabrowski v Greeuw’).

^[53] Ibid 267-8.

^[54] Trkulja v Google LLC (2018) 356 ALR 178.

^[55] Ibid [61].

^[56] Nicholas Olson, ‘Googling defamation law’ (2018) 47 Law Society of NSW Journal 84, 85.

^[57] Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.

^[58] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 (‘Voller’).

^[59] Defamation Act 2005 (NSW) s 32.

^[60] Voller (n 58) [224].

^[61] Michael Pelly, ‘Media lose Facebook defamation case, mull appeal’ Australian Financial Review (online, 1 June 2020) <https://www.afr.com/companies/media-and-marketing/media-lose-facebook-defamation-case-mull-appeal-20200601-p54yar>.

^[62] Dan Conifer and Jack Snape, ‘Social media slurs could put Facebook in the courts under defamation push’ ABC (online, 20 November 2019) <abc.net.au/news/2019-11-20/facebook-twitter-social-media-defamation/11721864> (‘Social media slurs’).

^[63] Paul Karp, ‘Christian Porter v ABC: can the minister sue for defamation over article that didn't name him?’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/australia-news/2021/mar/16/christian-porter-v-abc-can-the-minister-sue-for-defamation-over-article-that-didnt-name-him>.

^[64] Conifer and Snape, ‘Social media slurs’ (n 62).

^[65] Rolph, Defamation Law (n 4), 7.

^[66] Daniel Joyce, ‘Christian Porter's defamation action threatens to further chill public interest journalism’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/commentisfree/2021/mar/16/christian-porters-defamation-action-threatens-to-further-chill-public-interest-journalism>.

^[67] May, ‘Defamation and social media’ (n 17).

^[68] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 246.

^[69] Defamation Amendment Act 2020 (NSW) s 10A.

^[70] Defamation Amendment Act 2020 (NSW) s 10A(4).

^[71] Bruce McClintock, ‘Defamation Reforms: Much Ado About Not Much’ (2020) 70 Law Society of NSW Journal 66, 66.

^[72] Defamation Amendment Act 2020 (NSW) s 29A.

^[73] Joyce (n 66).

^[74] Robert Todd, Nick Perkins, Imogen Loxton and Ted Talas, ‘In the Public Interest? Changes to the Uniform Defamation Law’, Ashurst (Blog Post, 16 September 2020) <https://www.ashurst.com/en/news-and-insights/legal-updates/in-the-public-interest-changes-to-the-uniform-defamation-law/>.

^[75] McClintock (n 71) 67.

^[76] Defamation Amendment Act 2020 (NSW) s 14C.

^[77] Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575.

^[78] Anthony Gray, ‘Three suggested amendments to Australia’s defamation laws’ (2020) 45(2) Alternative Law Journal 94, 95.

^[79] Defamation Amendment Act 2020 (NSW) s 14C(3).

^[80] Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652.

^[81] Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154.

^[82] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 214.

^[83] David Rolph, Defamation Law (LawBook Co, 2016), 4.

^[84] Model Defamation Law Working Party, Review of Model Defamation Provisions – Stage 2 (Discussion paper, April 2021).