Defamation 101: the essentials in an online world

As government departments increasingly have an online presence, including social media, there are countless issues for leaders to be mindful of when it comes to defamation risk.

Robert Gregory, a Maddocks partner who advises government and corporate organisations on technology matters, says there’s a generational difference in the way potential online risks are approached.

“Digital natives use and see technology a lot differently to people who are a bit older,” Gregory said. “People from our generation often see the risks of defamation and all the negative elements of online engagement and social media.

“On the other side, a lot of younger people don’t even realise that you could potentially defame someone, or you may open yourself up to legal risks by posting something online.”

But regardless of how comfortable you are using new technologies, the potential legal risks are the same.

The legal risks of online engagement

Norman Lucas, a partner with Maddocks who specialises in defamation and reputation management, says government departments and other large corporations need to be connected to stakeholders and the community online. However, with that ability to connect comes legal risks, among them the potential to defame.

Up until relatively recently, defamation was something which predominantly concerned publishers and broadcasters in the traditional media. Now with blogs and social media anyone can publish statements online and potentially open themselves up to the risk of legal action.

“Increasingly defamation is becoming less about something that appeared on page three of the newspaper and more with something written online,” said Lucas.

The recent defamation case brought by federal Treasurer Joe Hockey against Fairfax shows why organisations have to be careful about how they engage on each independent channel.

“If you went back 20 years or so, you had to look at what was being published with the whole thing in context,” said Gregory. “The headlines out the front of the newsagency could be part of what you could sue someone for, but you couldn’t succeed on them alone.

“In the Joe Hockey v Fairfax case, the story itself was not found to be defamatory but the tweets which promoted them were.

“If that isn’t successfully appealed, an agency could produce a large report that when read as a whole and in context isn’t defamatory, but the tweet used to promote it could be.”

Republishing, re-tweeting and passing on the comments of someone else are other things to be wary of, says Lucas.

“In the law of defamation if someone writes something which is defamatory and you pass it on without comment, you are completely responsible for that republication,” he said.

Separating private life with a public persona

Some people don’t realise there’s not always a distinction between your work life and your private life, says Gregory.

“If employees post material that is related to their job, then it can be a legal issue for the employee and potentially for the employer,” he said.

“It falls into two categories: there are people for whom there is no distinction between their public and private personas, typically more senior people or communications professionals.”

They need to follow the same guidelines in their private postings as they would their ones for their work, says Gregory.

“Then there is the vast bulk of agency staff that should be able to express their opinions freely in their private capacity,” he said. “They need to be made very aware that when they are expressing a personal opinion they shouldn’t do anything to associate that with the agency with whom they work for.”

Comments of others can be defamatory too

Agencies need to look at the material they publish themselves, but comments published on an agency’s site can also be their responsibility, says Lucas.

“Once material is up on the agency’s site, then you may have obligations to remove it, and that can create just as big of an issue as if the agency published it in the first place,” he said.

If members of the public are making comments that are factually incorrect there is an obligation to moderate and correct them, Gregory says.

“In these fairly partisan times, if people are making comments regarding government policy, whether they’re positive or negative, and those comments are inaccurate, you need to have a process in place to monitor and when necessary take action,” he said.

“Agencies need to monitor the sites, so when there are third parties posting, there are checks being made about the nature of the content and an assessment being made by people about the risks of it not being removed.”

If an agency provides its service to the public for a fee, then it needs to be wary of how it promotes that product.

“There are prohibitions in consumer law for making false or misleading statements and increasingly agencies could be liable for misrepresentations if they occur in trade or commerce,” Gregory said.

“If an agency has a blog or a Facebook page and the public make claims about their service (or that of somebody else’s) which aren’t true, and the agency leaves those untrue comments on the page, they could become liable.”

What consequences could an agency face?

If a published statement is found to be inaccurate and harmful to a person or organisation’s reputation, then an agency could be sued for defamation and any individuals involved in publishing the material could also be joined as parties, says Lucas.

Changes to the Defamation Act in 2005 capped damages and limited who can sue. But litigation can still have detrimental impacts on an agency.

“The first thing about litigation is that it has an impact on the reputation of the agency — particularly since the whole process is done in public,” Lucas said.

The agency also needs to consider whether they should make an apology to limit further liability and that can be a reputational issue in its own right, he says.

“There’s also the amount of senior management time that gets taken up, that’s time which is not spent focusing on the core purpose and service of the agency,” he said.

Then there are the legal costs –- and they usually end up being far more than the damages, says Lucas.

Averting the risks of defamation

The risks can be averted if you follow clear guidelines around online engagement.

“You need to be alert, but not alarmed,” Lucas said. “As a general rule, you’ll be safe from defamation if you just stick to the facts, avoid speculation and watch your language and tone. The more intemperate or unreasonable the language is, then it may be more difficult to raise certain defences.

“If you have any hesitation about what you’re saying and wonder whether you’re exposing yourself to risk, then you should pause and seek a second opinion — that’s just common sense.”

Government departments should make sure that there is someone within the department who understands issues around privacy and defamation, says Lucas.

“When social media started, marketing and communications people were often checking these things and they didn’t always have a sophisticated understanding of legal risk,” he said.

Departments should have in place practical training for staff, social media polices and protocols around who is able to publish material and the signoffs, says Gregory.

“The critical thing is training, and then ensuring staff are regularly reminded about the policies,” he said. “You can’t have the lawyers writing the articles, so the authors themselves need to be able to recognise what is potentially risky and get a legal opinion.”

Gregory says, however, agencies shouldn’t become obsessed with the potential negative outcomes of using new technology.

“Don’t use the fear of a potential mistake as an excuse not to get involved and explore new channels to share information with the public — that’s a mistake in its own right,” he said.

Written by Jacob Robinson