Social media and defamation law pose threats to free speech, and it's time for reform

Who can say what to whom in Australia? In this six-part series, we look at the complex idea of freedom of speech, who gets to exercise it and whether it is being curtailed in public debate.

Recent discussion about freedom of speech in Australia has focused almost exclusively on Section 18C of the Racial Discrimination Act. For some politicians and commentators, 18C is the greatest challenge to freedom of speech in Australia and the reform or repeal of this section will reinstate freedom of speech.

There are many challenges to freedom of speech in Australia beyond 18C, for example defamation law. Defamation law applies to all speech, whereas 18C applies only to speech relating to race, colour or national or ethnic origin.

The pervasive application of defamation law to all communication creates real risks of liability for publishers. Large media companies are used to managing those risks. But defamation law applies to all publishers, large and small. Now, through social media, private individuals can become publishers on a large scale.

A significant reason that defamation law poses a risk to free speech is that it is relatively easy to sue for defamation and relatively difficult to defend such a claim. All a plaintiff will need to demonstrate is that the defendant published material that identified the plaintiff, directly or indirectly, and that it was disparaging of their reputation.

In many cases, proving publication and identification is straightforward, so the only real issue is whether what has been published is disparaging of the person’s reputation. Once this has been established, the law presumes the plaintiff’s reputation has been damaged and that what has been published is false.

It is then for the publisher to establish a defence. The publisher may prove that what has been published is substantially accurate, or may claim that it is fair comment or honest opinion (but the comment or opinion must be based on accurately stated facts), or may be privileged. Truth, comment and privilege are the major defences to defamation.

One of the main criticisms of 18C is that it inhibits people from speaking freely about issues touching on race. In essence, this criticism is that 18C “chills” speech.

The ability of the law to inhibit or “chill” speech is not unique to 18C. The “chilling effect” of defamation law is well-known. Precisely because it is easier to sue, than to be sued, for defamation, the “chilling effect” of defamation law is significant.

Defamation claims based on social media publications by private individuals are increasingly being litigated in Australia. In 2013, a man was ordered to pay A$105,000 damages to a music teacher at his former school over a series of defamatory tweets and Facebook posts. In 2014, four men were ordered to pay combined damages of $340,000 to a fellow poker player, arising out of allegations of theft made in Facebook posts. In the former case, judge Elkaim emphasised that:

… when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.

More defamation cases arising out of social media can be anticipated. Indeed, the cases that make it to court represent only a fraction of the concerns about defamatory publications on social media. Many cases settle before they reach court and still more are resolved by correspondence before any claim is even commenced in court.

There are several ways in which defamation law might be reformed in Australia that could promote freedom of speech, particularly for everyday communication.

Currently, plaintiffs suing for defamation in Australia do not have to demonstrate that they suffered a minimum level of harm at the outset of their claims. Publication to one other person is sufficient for a claim in defamation, and damage to reputation is presumed. Defamation law is arguably engaged at too low a level in Australia.

English courts have developed two doctrines to deal with low-level defamation claims. It is worth considering whether these should be adopted in Australia.

The first is the principle of proportionality. This allows a defamation claim to be stayed where the cost of the matter making its way through the court would be grossly disproportionate to clearing the plaintiff’s reputation. A court would view such a claim as an abuse of process.

There has been some judicial support for this principle in Australia, most notably Justice McCallum in Bleyer v Google Inc, but there has also been judicial criticism and resistance.

The other English development is the requirement that a plaintiff prove a level of serious or substantial harm to reputation before being allowed to litigate.

Australian law does have a defence of triviality, but it is difficult to establish because of the terms of the legislation. It also only applies after the plaintiff has established the defendant’s liability. By contrast, the threshold requirement of serious or substantial harm can stop trivial defamation claims before they start.

Another way in which the balance between the protection of reputation and freedom of speech online could be effectively recalibrated is by developing alternative remedies for defamation.

Notwithstanding previous attempts at defamation law reform, it remains the case that an award of damages is still the principal remedy for defamation. Yet people who have had their reputations damaged would probably prefer a swift correction or retraction, or to have the material taken down, or have a right of reply, than commencing a claim for damages.

Currently, people can negotiate these remedies by threatening to sue, or suing, and hoping they can secure these remedies as part of a settlement. Australian law has no effective small claims dispute resolution system for defamation in the way that it does for other small claims, such as debts. More effective and more accessible remedies are another aspect of defamation law reform worth exploring.

The discussion about freedom of speech in Australia recently has been unduly narrow. Every Australian has an interest in freedom of speech, not only about issues of race. Every Australian also has an interest in the protection of their reputation.

It is time to widen the focus of the treatment of free speech under Australian law. Defamation law is an obvious area in need of reform on this front.