Defamation on the Internet

We need to be careful of our actions on the internet or we could very well find our selves in hot water for defamation.

The laws governing defamation on the internet are the same that govern defamation in other types of publications.

In addition to liability for defamatory material on your own website, you can also be found liable for posting defamatory material on other sites, including web pages such as Facebook or Wikipedia.

This is the case even if you are not the author or creator of the defamatory material.  For example, you may post a friends video on YouTube.

Even if you think that you are just expressing a personal opinion on a public issue, you may still be liable if you do not have a legitimate basis for your comments and your comments damage the reputation of an individual.

In New South Wales, there is a defence for innocent dissemination for subordinate distributors.  This means that a defamation action can potentially be defended by both an Internet Service Provider and an Internet Content Host provided that:

  • They were not the first or primary distributor of the material;
  • They were not it’s author or originator;
  • They do not have the capacity to exercise editorial control over the content before publication;
  • They did not know, or could not reasonably have known, that material was defamatory;
  • Their lack of knowledge was not due to any negligence on their part.

It is important to give notice, respond to a notice about potentially defamatory material promptly.  If you are notified that you have posted defamatory material on a website you should immediately seek legal advice as to whether you may be liable for defamation.

If you consider that the material is defamatory, and you do not have a defence, you should remove the material immediately.

Offer to Resolve

If someone alleges that you have defamed them, you can make an offer to make amends.  You must do so within 28 days of receiving written notice of the complaint.

The offer to make amends must also be in writing and must include:

  1. An offer to publish a reasonable correction;
  2. An offer to pay expenses reasonably incurred by the complainant to the time of the offer.

If your offer is accepted, the matter ends there. If your offer is rejected and you are taken to court, the court may reduce any damages payable provided your offer was reasonable.

It is important to note that if you publish an apology, an apology cannot be used against you as an admission of liability.  Also, if the defamation claim is successful, an apology may help to reduce your damages.

If you would like to find out more, call Bernard McAuley or Peter Moore at Brazel Moore Compensation Lawyers on (02 ) 4324 7699 for all of your defamation claim inquiries.