Dealing with defamation online

Mark Freidin

9th Jun 2012

Dealing with Defamation Online

These days, there is no doubt that the internet forms a part of any brand’s public profile, and we’re long past the point of no return. Even if you or your organisation itself isn’t online, it’s almost certain that someone else has mentioned your business somewhere on the World Wide Web.

Your brand is the most valuable asset that you’ll want to protect. Whether you’ve been “reviewed” by a competitor on Eatability, “trolled” on Facebook or bad mouthed by Crikey (or all three) you probably understand the real costs associated with having had your reputation injured online.

There’s no doubt that protecting your brand online is difficult, but there are a number of ways that you can mitigate loss. If your organisation decides that stopping any potential defamation is necessary, it is important to act immediately.

What Are Your First Steps?

It may be appropriate to simply refute any fraudulent or dishonest claim using the mechanisms available to users. It may also be of value to simply try asking politely that the content be removed. A customer blowing off steam may be quickly disarmed if they’re approached with a well reasoned, honest and heartfelt response (or apology).

On most web platforms, under the terms of service, you’ll have the right to lodge a complaint to the platform provider if you have evidence that your brand has been genuinely defamed. You may be expected to provide evidence of dishonesty.

If your other options are exhausted, and serious damage has been done to your brand, legal enforcement mechanisms under the Defamation Act may be appropriate.

Defamation Basics

Defamation is a civil action that allows anyone whose reputation has been harmed to bring a case for damages against those responsible. This right however is balance against the protection of freedom of speech.

The law of defamation requires three things:

1. The material must have been published or communicated.

2. The party aggrieved must have been identified. Identification need not be by naming a party, and can arise from the inclusion characteristics that enable identification.

3. The material published must be defamatory. If the published material:

(a) exposes a party to ridicule, or

(b) lowers the party’s reputation in the eyes of members of the community, or

(c) causes people to shun or avoid the party, or

(d) injures the party’s professional reputation,

then the published material is defamatory.

However, exceptions exist for truth, substantial truth and honest opinion. Innocent disseminators of information, such as social media platforms and internet service providers are also protected.

A Defamation Claim

Defamation actions may be brought against not only the original publisher, but also against anyone who takes part in the publication or re-publication of the material.

The first step of any defamation claim is to prepare a cease and desist letter to be sent to any potential defendant. This letter will set out the basic grounds of a claim, and will request that a person or organisation cease its defamatory activity or take steps to remove the online defamation material, or face legal action. In many cases, a well drafted cease and desist letter may be sufficient to resolve the matter.

If limited damage has occurred, early resolution procedures under the Defamation Act are also available that allow a party to offer to make corrections and apologies to resolve a dispute.

Once the matter is before a court, preliminary discovery or a subpoena may be issued to identify the otherwise anonymous individuals responsible, and in certain cases, and injunction may granted to stop the harm immediately. If the matter progresses to hearing, an aggrieved plaintiff will be entitled to an award of damages to remedy the damage caused.

What if the Defamation Takes Place Elsewhere?

Within Australia, a defamation action may be commenced in any State or Territory in which the allegedly defamatory material was published. When published online, a plaintiff may have the liberty to choose the State or Territory in which to bring a suit.

Defamation laws in many other countries also enable a defamation action to be brought internationally if material was published in a foreign jurisdiction which is highly relevant when dealing with materials published via the World Wide Web. Costs associated with international litigation can however be prohibitive.

Conclusions

Defamation online is a real risk to all businesses. It’s impossible to control the internet, particularly where transgressors are otherwise anonymous.

However, there are a number of ways that your brand can manage this issue and seek reparation from those responsible.

For more info please contact Richard Prangell on 8239 6500 or richard.prangell@kreissonlegal.com.au.