Before social media when customers were not happy with the service or quality of goods then they made a complaint by phone or in person. Now, with the introduction of social media, the ability to complain is easier than ever. No longer do we have to jump in the car, drive down to the shop and produce the offending goods. Now we snap a picture, upload to social media and brain dump our thoughts to the world.
Better still, we don’t only have to complain to the business, we can complain anywhere! AND people like what we say, share what we say and give us sympathy. I am sure we have all seen a ‘warning’ about a particular product or service provider. Kind hearted souls sharing their thoughts about the quality of services, goods and failures to pay.
What is often forgotten is that defamation laws apply to social media. Increasingly defamation litigation is arising from statements made on social media. Where the comment is made on your page, then you are responsible as a publisher. But if it is true then is it not fine? Am I not I entitled to my opinion? Unfortunately it is not that simple. Here is a brief run down on how the defamation laws work in Australia.
But I have every right….don’t I?
You may feel justified in making a comment, however you may still have made a defamatory comment. The approach taken by a court is to consider whether a claim can be made out, and then the court will look at possible defences. There are three factors to be proved in a Defamation claim; Publication, Identification and Comment.
- Publication occurs as soon as any third party sees the comment. Even if there are no likes, responses or shares – if one person says that they saw the comment, publication has occurred.
- Clearly if you name someone then they have been identified. However, the Courts in Australia take a wide approach by asking if it is ‘possible’ to identify them. For example if you give enough information so that even one person knows who you are talking about, then identification has occurred.
- While you may believe that you are stating a fact, any comment that is negative about the person including calling them a name or expanding on the facts in any way can be a defamatory comment.
But it is true….
It is possible to defend a defamation action using the defence of ‘truth & honest opinion’. As long as you have evidence to show this. There is also a further defence available called ‘Triviality’. This is relevant to publishers / page managers because an argument of triviality would include the fact that a comment was deleted quickly, reducing the period of time that it was available to be seen. The seriousness of the comment together with the period of publication, and the extent of the recipients all go towards the question of what damage was suffered by the person, when considering any amount of compensation to be ordered.
When you manage a social media page, whether it is your business page or a group you should be actively moderating the comments made as a publisher and consider removing any comments to avoid potential action being taken against you.