Social media explosion leaves defamation law at the starting gate


A recent US Court case highlights the dangers of online and social media opinion and shows that even those who make anonymous posts on bulletin boards can be held to account.

In Texas a couple has been awarded a total of almost $14 million in damages from defendants who were identified after a judge ordered online company,, to hand over internet protocol (IP) addresses.

The six defendants were found to be responsible for 70% of 179 posts that accused the couple of sexual molestation and drug pushing – accusations deemed to have caused the couple mental anguish, loss of reputation and loss of business.

The case highlights the conflict between an individual’s right to freedom of expression and the laws protecting privacy and reputation. This conflict underpins current legal challenges in dealing with use of digital media worldwide.

As it stands, there are no uniform global defamation laws, meaning that plaintiffs can shop for the forum with laws most likely to favour their legal action.

In 2002 the High Court of Australia ruled that Joseph Gutnick could sue for defamation in Australia, where the material was downloaded and read, and that he did not need to go to the US where the material was produced by Dow Jones.  This was the first time that an Australian court had clarified that if material is downloaded from the internet on an Australian computer our courts have jurisdiction, regardless of the material’s country of origin.

Apart from the turf war, the 2002 decision was important because US defamation laws are more liberal, and a case that is winnable in Australia might be hopeless in the US.

In 2005, and after more than 20 years of prevaricating, the Australian States and Territories reached agreement on a restatement of defamation laws that now apply relatively uniformly throughout Australia.  But national uniformity only gets us some of the way.

The Gutnick decision was 10 years ago and while technology has moved on, and new social media tools such as Facebook and Twitter have boomed, the law has largely stood still.  Our current laws, which were drafted to cover traditional print and broadcast media, struggle to deal with social media. In particular, the lightning speed at which material is passed from one user to another, across borders, can quickly cause global damage to reputation.

As social media has become more pervasive, other important legal questions, particularly privacy issues, have emerged.

In recent months we have seen a number of important government inquiries into the media, including the Finkelstein Report and the Convergence Review.  Meanwhile in the UK, the Leveson Inquiry continues. 

It remains to be seen whether this process of scrutiny, analysis, criticism and self justification will achieve anything.  So far there has been no progress in terms of clarifying the liability of servers and social media ISP providers, or any real consideration of whether principles of liability and the ambit of defences need to be amended to cater for social media.

There are a number of international treaties and conventions that aim to harmonise key aspects of intellectual property and copyright laws.  It is time for the issues raised by the explosion of social media technologies to be addressed on a global scale as well.

The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.

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Richard Leder

Partner. Melbourne
+61 3 9672 3489