According to media experts the Australian public are becoming naive of the consequences of defamation due to social media and the laws which are lagging behind.
Ilana Bolingford, digital media expert said that it is easy to make out the elements of defamation in Australia; however, the majority of the public are naïve about defamation laws.
“Most people have no idea that what they are writing could lead them straight to court. This is particularly prevalent in social media,” Ms Bolingford said.
Defamation is anything that may injure a person’s reputation by either speech (slander) or writing (libel). University of Technology Sydney (UTS) research shows that approximately half of the defamation cases from 2013 to 2017 are associated with digital media, of which 87 cases resulted in damages, with 42 exceeding $100,000.
In the data shown, 16 cases involved Facebook posts, 20 emails, four Tweets and two involved SMS texts with analysis showing most cases happened in New South Wales.
UTS data also shows the number of cases between 2013-17 rose then fell and about half of the cases came from social media.
Cases in London showed a decrease from 1995 with an increase between 2002 and 2009, then a fall after 2009.
Researcher from UTS, former deputy editor of The Australian, Professor Peter Fray said New South Wales had the most amount of substantial decisions because the payouts are bigger.
“There is an increasing use of the Federal Court in NSW where judge only cases are the de rigeur,” Mr Fray said.
Ex-politician, Clive Palmer said he has intentions to pursue Youtube blogger, Jordan Shanks for defamation.
Clive Palmer who has had a long history with court actions, has written in his biography for Who’s Who, that litigation is one of his hobbies.
Mr Palmer was upset by a video where Mr Shanks called Palmer a “dense humpty dumpty” and a “fattymcfuckhead”.
Palmer also took offence to at a photoshopped image of him as a baby being held by Donald Trump with Australian entrepreneur Big Kev holding his thumb up.
Sam Iskander, Palmer’s lawyer in an intention letter to sue, wrote to Mr Shanks stating that his client was demanded $500,000.
Mr Fray explained that he believed that the laws would need to be clearer for defamation.
Specially to qualified privilege which is a defence on where the defamatory imputation may be excused if there is public interest.
The legal definition of what Interest means something more than a matter of gossip but it is to be assessed broadly in its popular sense.
Interest includes matters of genuine public interest that that is are more than just newsworthy.
Professor Fray said, “we at the CMT (Centre for Media Transition), have suggested the defence of qualified privilege needs clarification; there is too [much] leeway towards the judicial interpretation.”
Dr Craig Burgess, defamation lawyer, said he believed that defamation laws where lagging behind the online media platforms.
“Uniform defamation laws were drafted at a time when the Internet’s possibilities were only beginning to be understood.
"For example, it seems to be generally agreed by courts that the liability of search engines, social media platforms and online discussion forums is still not fully settled.”
Dr Burgess explained that defamation does not present the same problem in the United States.
“The American constitution states that, Congress shall make no law abridging the freedom of speech or of the press.
"This has been interpreted widely by the US courts, as a result, Americans are freer to criticise public figures much more compared what is possible in Australia.”