Legal dangers of social media pile-ons

A Texas jury has awarded over a million dollars to a wedding photographer whose client posted defamatory comments on social media. The problem? The photographer’s refusal to hand over the wedding album unless the client paid extra. The bride claimed that the photographer was holding the pictures “hostage”. In the ensuing avalanche of social media shaming, the photographer had to close her own Facebook page, with substantial loss of business.

It’s a typical story. Someone has a bad experience, perhaps with a local business. They complain about it on social media. Others respond, forgetting there may be another perspective or even some facts they don’t know. A viral pile-on ensues. The target finds themselves shunned, or their business goes cold. Or both.

In this case, the court found that the bride hadn’t read the contract properly. The photographer was within her rights to charge what she did, and had been maliciously defamed.

Despite what many people seem to think, the internet is not a magic place where mouthing off has no consequences. Even in the US, which has some of the most liberal free speech laws in the world, courts will step in to protect the reputations of those who are unfairly targeted.

In recent years in Australia there have been a number of Facebook defamation cases resulting in damages awards. They include a former student who posted about a teacher, and a man who posted about a local motel. Even reposting or “liking” the comment of another person can expose users to liability, as happened in the Texan case.

Some people seem to think that not naming their target of complaint will protect them from being sued. Not so. If someone else reading the post can deduce the target’s identity, there can be liability for defamation.  If the post mentions the locality, kind of business, or other identifying features of the target, this may be easy. If the person posting hasn’t given enough clues, other users might soon fill in the missing details. Or perhaps they will guess wrongly – which creates another kind of defamation problem. Even the site administrator could be exposed if they don’t moderate toxic comments building up on their page.

And yet the opinions keep raining down.  An Australian judge recently summed it up:

“There still manifests a perception in some members of the community that the laws of defamation do not apply to publications made over the internet. Consequently, there is a lingering misapprehension that anything at all can be posted concerning another person over the internet no matter how defamatory or scandalous the uploaded material may be and that the posted material will enjoy a complete immunity. That perception is wrong”…..

To be sure, Australian defamation law protects free speech to some degree, particularly where political speech is at stake. But it doesn’t do so nearly as comprehensively as it should. Australia’s defamation laws are torturous, antiquated and very unsympathetic to the quick and casual environment of social media. A Facebook post or tweet composed in seconds is the same for legal purposes as one written on paper. In the paper world, a publisher and lawyer will generally have had a look before the publication goes out to the world. Not so on social media.

Australian social media users have less free speech protection than many other democracies. Contrast the legal situation here with countries that have express constitutional freedom of speech. Like say, Canada. A recent Canadian case concerned a woman who mentioned in a closed Facebook group her worry about a company’s plan to deposit fill in a local pit, and whether it could “poison” their children. The company found out, and sued. In a precedent setting case, Canada’s Charter of Rights trumped the defamation suit, and she won damages of her own. Or contrast the position in the States, where public figures such as Donald Trump generally can’t sue. Unfortunately again, not the case here. Our politicians are world class defamation plaintiffs. So be careful before you insult them online, too.

To paraphrase Mark Zuckerberg’s ex-girlfriend in The Social Network, the internet is written in ink. Once something is posted online, it can pretty much be found forever. Each time it is downloaded, there is a potential defamation claim. Social media feels deceptively like a chat at the local coffee shop – as it’s meant to. But it’s much more permanent than that. It’s like carving your post on the front of the town hall. If you get sued, the costs of defending a defamation action can be eye watering.

My suggestion? If you have a complaint about a person or local business, take it offline. If you feel you must post your complaints on social media, be very careful. And for many reasons, avoid being involved in social media pile-ons.

For legal advice about social media publishing and risk management, contact me.

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