Defamation VS Freedom of Speech
“A reputation once broken may possibly be repaired, but the world will always keep their eyes on the spot where the crack was.” –Joseph Hall
Words, once spoken, what is done cannot be undone. Someone might say there has a restriction between defamation and freedom of speech, but how to define both of them? Although, people were emphasized free speech, especially in the democratic society. Freedom of speech does not mean boundless and lawless, therefore we still need to consider and carried the “responsibility to speech”. So, it should set out an appropriate balance between defamation and freedom of speech.
This article will walk through the most important issues defamation and we will talk about the boundary and prospect of freedom of speech and defamation.
What is defamation?
According to the law firm – Slater and Gordon Lawyers, Defamation is where a person or a company seeks damages for loss of reputation and negatively affects their reputation of another person, due to someone publishing or distributing defamatory material. Defamatory material including blogs, articles, novels, poems, photos, songs, emails, cartoons, drawings, paintings, online reviews, social media posts etc.
Defamation Act in Australia
The law of defamation in New South Wales is largely governed by the common law, supplemented by the Defamation Act 2005. The aims of the law of defamation are to protect a person’s reputation, at the same time it also protecting the human right which is freedom of speech.
Defamation Act is to protect all Australians from false or unsubstantiated statements being made about them that may cause harm to their personal or professional reputation. It enables those who have been defamed to seek compensation for financial and other losses resulting from a defamatory publication of any kind.
How to prevent – Defamation?
For all the social media user. Take a second to double check, when they want to make any remarks via email or social media. They need to consider that does all those remarks are appropriate in a social platform if people posted it on social media and allow all people to view and comment on it. Does it affect others reputation? In addition, when your friends post any defamatory comments under your post, you should also pay attention. It is because your approval or acquiescence may cause you to bear the legal responsibility of “defamation”.
Furthermore, stick to the fact. Ensure to post and say anything which is truthful and accurate. If posting any opinion on social media, use opinion-based language as much as possible. For example; In my opinion, It’s my belief or base on what I know etc. to make sure that opinion is based on facts that can be prove those sare accurate and avoid opinions that could be read as facts. No matter those commons or views which knowingly or unknowingly defamed someone, social media user will be bear the responsibility. If you have doubts about a particular post or comment, deleted all of them from social media is the best way to prevent being charged with defamation.
How the defamation constitutes in social media? The case which mainly in Canada (British Columbia) as that is where the case happened there, nevertheless, there is a similar law in Australia. The 2016 case of Pritchard v. Van Nes –Pritchard v. Van Nes, 2016 BCSC 686 (CanLII), it is illustrating an example of the defamation on the social media platform and it shows the importance of being careful when posting and commenting on any social media sites.
The plaintiff, Mr. Pritchard and the defendant, Ms. Van Nes, there has been tension between two next-door neighbours. Sine 2011, one heated event which about the nuisance and some minor problems, Ms. Van Nes write a post which talked about Mr. Pritchard on Facebook to release and vented her anger with outstandingly bad words such as, “creeper”, “nutter”, “pedophile” by her different “friends” and herself. Mr. Pritchard who was the most respected music teacher in one of the middle school. Furthermore, there was a post written by a “friend” of Ms. Van Nes said that “those posts must be shared to the public and send it to the school principal whom Mr. Pritchard was taught along with a letter indicating that Mr. Pritchard was a “potential paedophile” and suggesting that “kids may be in danger”. One of the comments such as insinuated that Mr. Pritchard was a pedophile and expressed some concern that he worked for a school district. After that, he withdrew from his participation in school extra-curricular activities. He also claimed that some of the parents expressed distrust in him or withdrew their children from his programs.
Mr. Pritchard charges Ms. Van Nes for defamation and nuisance. Mr. Pritchard testifies about the serious also irreversible harm that the defendant’s posts had caused him. Last, the court ultimately found that the attacks on the plaintiff’s character were false and sue that Ms. Van Nes was liable for defamation.
Impact of the above case
The above case reminded people of the real-world consequences in our digital lives can have. Everyone especially for the social media users, they should know they need to bear their responsibility for publishing and commenting in any social media platform, whatever clicking “like” on someone vilifying a post or common, because it may already comprise the libel or slander of defamation. Back to the case, base on the defamation act in Australia, Ms. Van Nes had already offended the law which was harmed and destroy the reputation of Mr. Pritchard by published the defamatory statement on the social media platform. Due to some of the people think that they do not need to take any responsibility on the internet and they have freedom of speech to express anything they wanted. Obviously, freedom of speech is not unlimited freedom.
Defamation or Freedom of speech?
With the rise of social media, many peoples are much concern and care about their right to freedom of expression. It is not surprising that social media defamation litigation are exponentially increasing all over the world. The users in social media, how does the related law about defamation effect on them? Since the internet is the place which let us communicate and interact with other people. However, it is always turn out as a quarrel when there was a disagreement. We live in a world which constant and full of online harassment and online abuses, where people can as an anonymous troll another person online which just for the fun of it. Therefore, it may easily sue as defamation.
Nowadays, we can enjoy the freedom of speech which means we have the right to express our opinions without fear of persecution. Although the constitution in Australia aimed to protect human’s freedom of speech However, it still has a fine line between free speech and defamation on the internet. Therefore, when the content became public remarks and it causes defamation or insult to others it must be sanctioned by law. There has no constitution which fully complete guarantee of free speech. Freedom of speech is limited such as; rude, impolite words, remarks that endanger public safety, malicious rumours etc. Those are the grey line between free speech and defamation.
To identify free speech and slander or libel. In Australia, there is no Commonwealth legislation enshrining to protect freedom of speech. According to the Australian Human Rights Commission, it does have limited freedom of “political communication” implied in the Australian Constitution. In fact, Australians are governed to a kind of laws limiting freedom of speech, such as; defamation laws, hate speech laws, sexual harassment laws, and laws against threatening others.
To sum up, nowadays social media platform has become mainstream, everyone can publish any common and post in social media platform. All the first-hand news can be immediately published on the Internet platform, readers can get the latest news without waiting for the printing time. But it also reminds all the social media user, do not rush up in order to get the first-hand news and Click-through Rate or views. Be aware of the authenticity and details in every incident, a post that you made or comment on it. It may easily to sue you into the defamation lawsuit by careless oversights and mistakes.
- Garoupa, N. & Ginsburg, T., 2017. Judicial reputation: a comparative theory, Chicago: The University of Chicago Press.
- Burgess, J., 2016. Pushor Mitchell LLP. Pushor Mitchell LLP. Available at: https://www.pushormitchell.com/2016/04/facebook-and-defamation-potential-liability-for-any-post-and-any-friends-comments/ [Accessed May 2, 2020].
- Young, D., 2019. Social Media and Defamation. Slater and Gordon. Available at: https://www.slatergordon.com.au/blog/social-media-and-defamation [Accessed May 2, 2020].
- Kootnekoff, S., 2020. Defamation on social media. Daily Courier. Available at: http://www.kelownadailycourier.ca/opinion/article_c04a3d6c-43e9-11ea-b27b-57b24a179f4a.html [Accessed May 2, 2020].
- The FindLaw Team, Do we have the right to freedom of speech in Australia? FindLaw Australia – Find a lawyer. Find Answers. Available at: https://www.findlaw.com.au/articles/4529/do-we-have-the-right-to-freedom-of-speech-in-austr.aspx [Accessed May 3, 2020].
- Pritchard v. Van Nes, 2016 BCSC 686 (CanLII), <http://canlii.ca/t/gplvp>, retrieved on 2020-05-02
- Legal Services Commission ed., 2013. What is Defamation? Handbook Home. Available at: https://lawhandbook.sa.gov.au/ch16s01.php [Accessed May 2, 2020].
- Dahlstrom, F., Defamation in New South Wales: Civil Lawyers NSW. Go To Court. Available at: https://www.gotocourt.com.au/civil-law/nsw/defamation/ [Accessed May 2, 2020].
- STICKLEY, Amanda. Patrick George, Defamation Law in Australia, (LexisNexis Butterworths 2006) 494pp. QUT Law Review, [S.l.], v. 7, n. 1, june 2007. ISSN 2201-7275. Available at: <https://lr.law.qut.edu.au/article/view/160>. Date accessed: 02 may 2020. doi: https://doi.org/10.5204/qutlr.v7i1.160.