In Principio_S1 2018_WEB

I N P R I N C I P I O | 2 5 Notre Dame’s legal experts, Dr Greg Walsh, Prasan Ulluwishewa and Tomas Fitzgerald weigh into the debate of social media commentary and how Australia needs law reform for the internet age. Would you be interested in adding $4.56 million to your bank account? If so, you may be interested in considering a defamation lawsuit. The Australian actor, Rebel Wilson, received this compensation payout when she was recently successful in her defamation action against Bauer Media for publishing a series of articles claiming that she was a ‘serial liar’ who had ‘fabricated almost every aspect of her life’. Although the case has been appealed, it is currently the largest amount ever awarded in Australia for a defamation action. Although most successful defamation actions will never result in such a large payment it is still possible for statements that harm a person’s reputation to result in significant compensation awards. So what’s required for a defamation action to be successful? The plaintiff needs to show that the defendant made a statement that was defamatory, that it was referable to the plaintiff and the matter was communicated to a third party. The action can be defeated if the defendant can prove that one or more defences apply such as that the matter published was substantially true, the comments were trivial or the comments were published on an occasion of privilege such as parliamentary proceedings. Importantly, the internet is no exception – meaning critical social media posts can easily lead to defamation actions. So calling a person a thief, a liar, a fraud or anything else that is defamatory may result in a substantial compensation payout being awarded. So the next time that you are thinking of posting or tweeting a criticism of someone, spend a few seconds reflecting on whether it is wise or else you might live to regret it! Dr Greg Walsh Senior Lecturer, School of Law, Sydney Social media has made us all publishers. That change has been remarkably quick. Equally remarkable is the fact that many social media users are completely oblivious to the legal attention their posts may attract. In fact, anyone who publishes defamatory material online is liable to be sued – whether the intent is underpinned by factual personal circumstances or not. Anything from negative restaurant reviews to online family disputes can all attract the legal eye. Championed by, and disseminated on social media, the #metoo movement has seen women speak out about systemic and personal, gendered violence. Some critics of the #metoomovement complain that ‘mob justice’ leaves accused men with no redress and innocent men tarred with the same brush. But the legal reality involving personal and private spats on social media is quite different. WA courts first ruled on ‘Facebook Defamation’ in 2015. A woman posted on social media that she had separated from her husband after 18 years of domestic violence. Seeing these comments, her ex-partner sued for defamation. The woman – who was self- represented – argued the statements were not defamatory as they were true. Letters from the husband were led in evidence. In them, he apologised for causing ‘panic (and some hype and anger)’ and ‘making my loved ones suffer my problems’. Despite this, the judge found that none of the parties proved reliable witnesses. Hence, the woman could not prove the truth of her statement and was ordered to pay $12,500 in damages. Less cautionary tale more Shakespearean tragedy, this case reminds us that technological change has legal consequences. Not just for individuals, but broad social consequences. And we may not always be comfortable with the direction the law takes us. Tomas Fitzgerald Senior Lecturer, School of Law, Fremantle In today’s globalised world, employees—in particular young people new to the workforce—must be forewarned of the dangers of social media. To paraphrase Jane Austen in the 21st Century – it is now de rigeur for human resources personnel to caution workers against recklessness in navigating the legal minefield presented by ‘social media’ – and with well-warranted concern. Social media platforms have now firmly established themselves in the ‘popular consciousness’ of the legal profession as a veritable font of legal and commercial risk for employers and employees alike. Offline (or real-world) human interaction—involving employers, employees and those outside the workplace—with all its imperfections is now transformed online by social media platforms, which facilitate an individual’s recording and broadcast of private thoughts (posts), feelings (emojis) and experiences (photographic and video footage) with a growing public network of ‘friends’ and ‘connections’. Unfortunately, in an era of decreasing self-inhibition, comments vented by a disgruntled employee now risk a fundamental breach of legal obligations to the employer. On the other hand, snide remarks between work colleagues is now constituted as ‘cyber-bullying’ with drastic legal and financial consequences. Perhaps it is time to concede that our reactions to social media mirror the conduct of its users? King Solomon himself, moved by the Holy Spirit in the Book of Proverbs, acknowledges that “every prudent man acts with knowledge, but a fool flaunts his folly” (Proverbs 13:16 ESV). Fools cannot but help reveal themselves in the workplace, whether by word or deed, online or offline. One can only pray that each of us will heed the divine wisdom of Proverbs and exercise prudence against the recklessness, which social media can so readily facilitate. Prasan Ulluwishewa Assistant Dean, School of Law, Sydney F E A T U R E