Two cases in Australia in the last few months have once again highlighted the need to exercise caution when posting on social media. The two cases, one in Queensland and one in Western Australia, concern statements of defamation posted on Facebook, Instagram and Twitter.

In 2021, changes to Victorian defamation laws brought them in line with new developments in the digital space. Now, statements posted in the form of comments or posts on social media can be used to prove defamation.

Statements made on a variety of platforms can be classed as defamation. These include:

  • Social media (such as Facebook, Instagram, Twitter, TikTok)
  • Chat rooms and message boards
  • On public websites

Defamation is the act of making false or malicious statements about a person or business that may damage their reputation.

To claim defamation, you must be able to prove:

1. The statement was published (this now includes online platforms)

2. The information in the statement is false

3. The statement identifies you or your business

4. The statement caused harm to your reputation.

Additionally, defamation can also hold the publishers liable. Following a 2021 High Court case in the Northern Territory, precedent now exists that states publishers are also liable for comments made on their social media pages by other people. This means the moderators of pages upon which statements of defamation are posted or commented can also be held liable.

Adam Zuchowski is a disputes lawyer and principal at Sutton Laurence King Lawyers.

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