Why defamation doesn't just involve movie stars and media companies
Rebel Wilson sued Bauer Media over articles that damaged her career by depicting her as a liar. (Getty Images: Lisa Maree Williams)
When defamation makes the news it's usually in connection with the rich and famous — like the case involving Australian actor Rebel Wilson, who sued a magazine publisher to the tune of $4.5 million.
But a new study suggests the rich and famous are not your usual plaintiffs when it comes to defamation cases — and that big media companies aren't the usual suspects facing defamation claims.
It's more likely to be average Australians who are both suing over and being accused of defamation, according to the study's author Derek Wilding, from the Centre for Media Transition at the University of Technology Sydney.
Loading...And what the average Australian might not know is that you can defame someone with a simple text message.
Dr Wilding's study found that between 2013 and 2017, 51 per cent of defamation actions in Australia were digital cases.
"What we found was people had been posting on Facebook. It involved emails … tweets, text messages, and also quite a number of postings on blogs and websites that were … something other than what you would call media," Dr Wilding said.
In fact, the study found just 26 per cent of the cases looked at involved a media company.
"And of the people that were bringing the actions, only 21 per cent of them could be regarded as public figures,"Dr Wilding said.
So who's suing and being sued then?
In one case outlined in the study, a woman sent text messages to her sister saying a man, the plaintiff, had been having both consensual and non-consensual sex with his sisters.
"So the claim was pretty serious, but it was only sent to one person and it was sent by text," Dr Wilding said.
"The plaintiff gave evidence about how he had been affected by this claim about him, [and] what the court referred to as the 'grapevine effect' through the family.
"He said that he no longer receives invitations to social functions and gatherings, and previously he had a good relationship with the family, so it had had this impact."
Be careful what you say about people in texts, lest it comes back to haunt you in court. (ABC RN)
People probably wouldn't assume that sending a text to your sister constitutes "publication" within the meaning of defamation law, but Dr Wilding said the 'grapevine effect' of the text's content spreading beyond that initial communication did.
"Once you say something and make that statement to someone other than the plaintiff, you are engaging in publication … so the defendant here was liable for her comments,"he said.
The plaintiff was awarded $100,000 in damages.
In another case, a Canberra soccer coach was successfully sued for about $180,000, after posting a series of defamatory statements about the chief executive of a football organisation on Facebook.
In this case, the judge paid particular attention to the fact that the posts were made on a public Facebook profile (as opposed to a private one) that anyone could access.
"There were various elements that were involved, particularly in reaching the decision on the damages that were awarded. But the open Facebook was one of those aspects," Dr Wilding said.
Protecting yourself against defamation
While Wilson is looking at a payout worth millions, the majority of people who take a defamation action to court won't be awarded big damages by a judge.
Dr Wilder's study found some damage awards were as low as $2,000.
"In 2015 we found that 21 awards of damages that were under $100,000. So it is often the case that having gone through quite a degree of preparation, a lot of cost and time … the financial rewards are not necessarily that great," he said.
Defamation law needs to evolve, the same way modern communication has, Dr Wilder says. (Stocksnap: Roman Kraft)
For many plaintiffs, there are no rewards at all.
"We were surprised to find that plaintiffs were successful in only about 35 per cent of the cases that we studied," Dr Wilder said.
"The idea of disputes between individuals over social media posts being solved by legal action is not something that should have great appeal to individuals."
Dr Wilder believes that in the 21st century, when everyone has the power to be a publisher on social media, defamation law in Australia has some catching up to do.
"I think it's definitely the time to reassess whether the law is actually appropriately dealing with the forms of publication that we have today," he said.
Asked what his advice would be to people who are prone to letting off a bit of steam online — be it on Facebook, Twitter or even by text message — when someone upsets them, Dr Wilding said everyone needed to be careful.
"Everyone needs to think twice about the kinds of statements that might be made about people in a social media environment or in text or in email or on blogs,"he said.
"Because what most of us don't assume to be the case, is that our actions make us publishers in the same way really that major media organisations are publishers.
"We are subject to the same laws, and potentially we can be involved in quite serious defamation actions that might be costly and time-consuming."