SBS speaks to Richard Mitry, a specialist in media law, about whether retweeting a comment or publishing a photo on Facebook can potentially get you into legal hot water.
Is social media subject to the same defamation laws as traditional media?
They are, in essence. Obviously the law of demation would need to change quite significantly to adapt to the phenomenon of social media. It's a completely different beast to traditional media like newspapers and television news, and the laws haven't necessarily adapted to that.
So, in a nutshell, what are the defamation laws? What can we say, what can't we say?
Essentially, you must tell the truth. In defamation, if you tell something which is false, or if you write something that is false. [It is considered defamatory] if it subjects somebody to hatred, contempt or ridicule or lowers their estimation in the eyes of the general community.
Have there been many changes to defamation laws since social media rocketed to popularity?
No, not really - certainly not enough. The laws have changed to adapt to the internet quite substantially. I know the Broadcast Services Act allows, for instance, protection to ISPs and content providers if defamatory content is published. [The ISP] is not expected to monitor everything that goes through their services. In other regards, right now the traditional laws of defamation are trying to catch up with the new technology.
So is that causing problems in the legal field?
It's certainly causing challenges. There have been cases where social media has been subject to defamation laws, but there isn't any specific legislation yet made in parliament addressing the social media phenomenon.
In terms of the distribution of material, what kind of responsibilities do regular users of social media have in terms of gauging whether or not the material distributed is defamatory or not?
Much greater responsibility than they probably know. Social media gives the voice to everybody to publish something that could go very wide very quickly - viral media, for instance.
People don't seem to realise by saying certain things, and I've often encountered this, by saying or writing certain things on Facebook, putting up obscene photos on Facebook, writing things on blogs, they could damage a person or business. It could subject them to proceedings in defamation.
What people really have to think about is somebody who is reading what I'm writing going to think. People should be really careful to ensure that 1) they don't tell any lies about people or businesses,and 2) that what they're saying isn't offensive to that person or business.
In the case of photo or video material that has been taken with consent, what kind of restrictions or limitations are there to posting these kinds of things on social media?
To be honest, it's quite an untested area of the law, where photos are taken with consent. Obviously, without consent is a different story. People are taking photos at every party they go to, nowadays, and they're all going up on Facebook. Often those people are drunk, and do things they might regret being published.
Does a person have a right to dictate what happens to a photo or video of them that's been taken with their consent?
If it's published somewhere without your consent, it's quite hard to stop that happening. Unfortunately, there are no rights to your personal image. You can't stop the publication of an image of yourself.
If the photo was taken and you think it might show something that would otherwise be confidential, for example, you let your friend take a photo of you thinking it would be kept with your friend, there is what would be [a case for] breach of confidence.
Apart from the original source of the defamation, what are the implications for regular users of passing on that material? For example, forwarding a tweet or reposting photo? Can they then be the subject for defamation?
They certainly can. It's an issue of republication, it's called. If you look at it in a traditional media context, if something was published by a media agency, and a newspaper picked it up, both the media agency and the newspaper - as the publisher - are liable.
In the social media context, if you pull off defamatory content from a website somewhere or another blog and then you publish it on your own, you certainly could be liable.
So potentially there could be hundreds of people who are liable for defamation for retweeting someone's defamatory comments?
Absolutely. Obviously, when somebody is considering bringing an action in defamation they'd have to consider the utility of suing a hundred people, or one. But they certainly are potentially liable.
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