The rise of digital platforms has transformed how information is shared and consumed, creating new challenges in defamation law. Social media, blogs, forums and online publications have increased the risk of defamatory statements reaching vast audiences instantly. This article examines how defamation law applies in the digital age, including its scope, challenges and implications for individuals and businesses in Queensland.

Understanding Digital Defamation

Defamation occurs when a publication communicates a false statement that damages the reputation of an individual or entity. In the digital age, this can happen through social media posts, tweets, online reviews, comments or any other internet-based publication. The law governing defamation in Queensland is primarily found in the Defamation Act 2005 (Qld), which applies to online and offline publications alike.

Key aspects of digital defamation include:

• Publication
For defamation to occur, the material must be communicated to at least one third party. In the online context, this can include private messages, public posts or shared media.
• Identifiability
The plaintiff must be identifiable in the publication, whether explicitly named or implied.
• Harm to reputation
The material must harm the reputation of the plaintiff in the eyes of an ordinary, reasonable person.

Unique Challenges in the Digital Age

The digital era presents specific challenges for defamation law, including:

1. Viral Nature of Content
Online content can be shared rapidly, increasing the reach and potential harm of defamatory statements. A single defamatory post can reach thousands if not millions of people in moments, amplifying reputational damage.

2. Anonymity of Publishers
Many defamatory statements online are made by anonymous or pseudonymous users. Identifying the publisher can require subpoenas to internet service providers or platform operators, making enforcement of defamation laws more complex.

3. Jurisdictional Issues
Online content transcends borders, creating jurisdictional complications. A defamatory statement published overseas but accessible in Queensland may still be actionable, but enforcing remedies across jurisdictions can be challenging.

4. Permanence of Digital Content
Even if a defamatory statement is deleted, copies may persist through screenshots, cached pages or reposts, prolonging reputational harm.

5. Interaction with Freedom of Speech
The internet has expanded opportunities for free expression but this has also led to tension between freedom of speech and the right to reputation. Courts must balance these competing interests carefully.

Recent Developments in Digital Defamation

Legislative and judicial developments have addressed the unique aspects of digital defamation:

• Serious harm threshold
The Defamation and Other Legislation Amendment Act 2021 (Qld) introduced a requirement that plaintiffs must prove that the defamatory publication caused or is likely to cause serious harm to their reputation. This ensures that minor disputes do not escalate to litigation.
• New public interest defence
The 2021 amendments also introduced a public interest defence, protecting publishers of matters of public interest if they acted reasonably.
• Social media liability
Courts have clarified that individuals who share or comment on defamatory material may also be liable for republishing the content.

Preventing Digital Defamation

Individuals and businesses can take proactive steps to minimise the risk of digital defamation:

• Think before publishing
Avoid making statements that could harm someone’s reputation without verifying their accuracy.
• Monitor online platforms
Regularly review comments and posts on your website or social media pages to identify potentially defamatory content.
• Understand liability
Be aware that sharing or liking defamatory content may constitute republication.
• Use disclaimers
For platforms hosting third-party content, clear disclaimers and moderation policies can help manage liability.

Cases

Trkulja v Google LLC (2018) 263 CLR 149

• The High Court of Australia held that Google could potentially be liable for defamation in connection with its search engine results and autocomplete suggestions. The plaintiff, Milorad Trkulja, alleged that Google’s results falsely implied he was associated with criminal activities. The Court found that it was reasonably arguable that an ordinary person might interpret the search results as defamatory and that Google’s role in publishing these results was not too remote to exempt it from liability. This case highlights the responsibility of search engine operators in ensuring their automated processes do not produce defamatory content.

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27

• The High Court determined that media companies operating Facebook pages could be held liable as publishers of defamatory comments made by third parties on their posts. Dylan Voller, the plaintiff, alleged that comments on news articles about him defamed his character. The Court ruled that the media companies, by facilitating and encouraging comments, were considered publishers under defamation law. This decision emphasises the need for page administrators to actively moderate user-generated content to mitigate potential liability for third-party defamation.

Seeking Advice

Defamation in the digital age can have serious personal and financial consequences. Harris Defamation offers expert legal guidance to individuals and businesses facing defamation claims or seeking to protect their reputation. Our team can assist with pre-publication advice, removal of defamatory content and pursuing or defending defamation actions.
We offer a fixed-fee consultation to help you understand your rights and options, providing practical and effective solutions tailored to your circumstances.

Conclusion

The digital age has revolutionised communication but it has also increased the risk and impact of defamation. Whether you are an individual seeking to protect your reputation or a business navigating online interactions, understanding defamation law is essential. Contact Harris Defamation today for expert advice and support in managing defamation risks and resolving disputes effectively.