Erica Vowles: Hi, Erica Vowles here, welcome to the Law Report.
In a time of conflict, defining what constitutes a cyber-attack, a potential act of war, is tricky. So is international humanitarian law keeping up with the new battlefields of the 21st century?
Where going to take a look at this later in the show.
Actor Rebel Wilson made international headlines when she successfully sued Bauer Media because of defamatory articles they published about her. The court ordered the publisher pay up $4.5 million. That's still being played out in the courts, as are other cases involving high-profile Australian actors.
But a new study suggests that the rich and famous are not your usual plaintiffs when it comes to defamation cases. Nor are media companies the usual suspects when it comes to defending defamation claims.
The study's author is Dr Derek Wilding, he's the co-director of the Centre for Media Transition at the University of Technology of Sydney.
Derek Wilding: Well, we found that overall over a period of five years, that 51% of our cases were digital defamation cases, as we call them. So that can involve publication in any kind of digital form, and what we found was people had been posting on Facebook. It involved emails, it involved tweets, text messages, and also quite a number of postings on blogs and websites that were not the websites of major media organisations but were ordinary websites that people had set up or something other than what you would call media.
Erica Vowles: So, many people would assume that defamation cases are largely centred around high-profile figures who are in conflict with big media organisations. Is that the case today?
Derek Wilding: That's not really the case at all. We found 26% of these cases there was a major media organisation, so that's quite a lot of publications or publishers, if you like, that are not media. And on the people that are bringing the actions, only 21% of them could be regarded as public figures.
Erica Vowles: That's a real change, isn't it, that four out of five defamation cases are involving people who we would consider private individuals.
Derek Wilding: That's right, it's disputes between private individuals, it's disputes involving an individual and their employer, but it is less the case that it is public figures, celebrities and politicians, bringing actions against media companies.
Erica Vowles: So let's talk about some of the cases that you looked at. One of the cases involved the CEO of a football company who felt that they had been defamed. What do we know about the facts of this case?
Derek Wilding: Yes, that was a case from 2016 in the ACT, and the plaintiff was the CEO of the football company and she had brought an action against someone who it was said was a coach and a former player who had posted statements about her on his Facebook page. This occurred over a period of time. There were nine postings that were at issue in the case, and they were pretty forthright comments, including accusations of the CEO being fraudulent, dishonest, a liar, gender biased et cetera.
She brought an action against him saying that indeed they defamed her, that they caused her to question her reputation and her integrity, and that in fact it hastened her transition out of that job. In that case it was Facebook postings, and his page was opened, it was a public page. He had 400 friends. And what I think was one of the interesting aspects of that was that the judge in describing what had happened talked about publication in a way that I think is somewhat removed from what people would assume is involved in social media. So he said that the content wasn't made available for publication by the defendant, and he permits and controls third-party comments and a response to the content that he posts.
So that kind of comment is something that you might ordinarily think would be attributed or the kind of conduct that you would describe a media organisation being involved in, not necessarily an individual person who is posting on Facebook, and it shows that transition away from comments that are made in a personal environment to something for which you are going to have to answer in a legal sense.
Erica Vowles: Speaking as someone who works at the ABC, whenever you put something on a Facebook page as a producer or a presenter, you have to keep an eye on the comments that are coming through and there's a responsibility to kind of filter. In a way was the judge saying that having an open Facebook page also carried that kind of responsibility for a private individual talking about someone who was somewhat prominent in her community?
Derek Wilding: Yes, I think that's right. 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, and another interesting part of the case was that this plaintiff might be said to be someone who had a particularly high reputation, so that this had a particular impact upon her.
Erica Vowles: You said that damages were awarded, so the court actually found that she was defamed. Tell us about the damages.
Derek Wilding: That's right, so the plaintiff in this case was awarded $180,000 in damages, but she also got injunctions to prevent to the defendant from continuing to publish anything about her.
Erica Vowles: So not only 'you have to pay up', but 'you've got to stop making the defamatory comments'.
Derek Wilding: That's right.
Erica Vowles: There was another recent case involving a defendant who sent a text message and that saw the matter of legal proceedings over defamation. Can you tell me about this case?
Derek Wilding: That was the case that was Bertwistle v Conquest and it was a decision of the District Court in Queensland, and that involved text messages that were on a day in 2014 sent by Miss Conquest on a day in 2014, they were just sent to her sister and they accused the plaintiff in this case, Mr Bertwistle, of, in the words of the court, having engaged in 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.
This case was interesting because, like the previous one, it involved a defendant who did not appear in court. So the matter proceeded and the plaintiff gave evidence about how he had been affected by this claim about him, what's 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 upon him. And in that case the defendant offered a kind of apology but not one that was sufficient for the purposes of defamation law, and she didn't appear at the time of the judgement and she didn't appear at the time that the damages were being determined. So the decision was entered against her, and in that case damages of $100,000 were awarded. But also in this one, injunctions were issued against her.
Erica Vowles: You know, in this instance it was one text message, but it wasn't so much the text message as the ripple effects.
Derek Wilding: Yes, the grapevine effect. One of the interesting aspects of this is people probably wouldn't assume that that kind of communication constitutes publication within the meaning of defamation law, sending a text to your sister, but in fact once you say something and make that statement to someone other than the plaintiff you are engaging in publication, and this constituted publication, and so the defendant here was liable for her comments about the plaintiff.
Erica Vowles: Did this surprise you, that one text message would be considered publication?
Derek Wilding: It does surprise me. It seems to me that it's an aspect of our current environment that certainly wasn't anticipated some time ago when the principles that were involved here were formulated. I guess the law has evolved over time and tries to apply principles in a consistent way so that they are technology neutral, that every new technology doesn't mean upending the system. But at the same time I think we have to say that the circumstances of publication have changed so profoundly over the last 15 years or so, that these forms of communication are just something that is wholly new, and applying the law that we've developed for quite different circumstances, including for, say, publication in mainstream media, is not necessarily the kind of approach that we want for publication in a contemporary environment.
Erica Vowles: In both of these cases, the defendants I believe didn't show up, but if they had shown up and they had been able to prove the truth of any of the allegations in the two cases, then there could have mounted a defence, couldn't they.
Derek Wilding: Yes, they could have. After getting over the phase in which the defamatory meaning of the matter is established, by choosing not to defend the matter, of course they open themselves up to judgement against them, and essentially for the imputations to be accepted on their face without being challenged.
Erica Vowles: Does it also show that ordinary individuals might be a bit caught out by all of this?
Derek Wilding: I think it certainly shows that people who use social media, for example, are not expecting to be brought into court as a result of comments that they make about people on their Facebook page or in text messages they send or something of that kind. Whether we ought to all be so blasé about statements that we make about people is a reasonable question, but I think it's certainly the case that most of us wouldn't anticipate that we would potentially be caught up in legal action and in some cases may be caught up in legal action that goes on for a long period of time and is very costly.
Erica Vowles: Dr Derek Wilding, do you feel that our laws have kept up with the changes that our society has gone through, given that everyone now has the power to be a publisher?
Derek Wilding: Look, 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. It has always been the case that media organisations have faced significant challenges in publishing, that defamation laws to some extent have been a chill upon what can be said on free speech within this country. We have particularly strong defamation laws. But I think what we see now is that those laws are having their application to everyday people, to the kinds of statements that we all might make on social media, and while we do need to exercise some personal responsibility for that, it's one thing to have laws that are designed for mainstream media, it's another to apply those same laws in circumstances where many of us now have opportunities to publish, to make our views known in ways that we didn't some years ago.
Erica Vowles: We've been talking about some big payouts, $100,000 and more. Is that the norm in the cases that you've reviewed?
Derek Wilding: That's the odd thing about defamation damages. We hear about large payouts, we've discussed some that are in the region of $100,000-$200,000. There have been some spectacularly high payouts just in the last year. For example, in the Rebel Wilson case, in her matter against Bauer Media. But at the same time that's not always the case, that in fact when you look at the damages that have been awarded over the last five years, you see that in some cases the damages are as low as $5,000 or $2,000. In one year, 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 to mount a defamation action, the rewards in terms of the financial rewards at least are not necessarily that great and they are certainly not the kind of result that is obtained or that we read about in high-profile cases like the Rebel Wilson case.
Erica Vowles: How often that were plaintiffs, so people who felt that they had been defamed, how often were plaintiffs actually successful in proving in the courts that yes, they had been defamed?
Derek Wilding: Well, we were surprised to find that plaintiffs were successful in only about 35% of the cases that we studied. So I guess contrary to expectations about the potential payout, plaintiffs didn't always win. They were sometimes subjected to lengthy court processes, and at the end of that they didn't win that case. So in that sense it's not a terribly satisfactory approach for a plaintiff to launch a defamation action, it would seem.
Further, if the damages that you receive, having gone through all of this, are as low as $5,000 or $2,000, then clearly you are not even going to cover your costs. And I think that's probably something that people need to take into account when they are considering their options and whether in fact legal action is really something that is going to be in their long-term interests.
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, and it's certainly not something that has much appeal in terms of promoting free discussion within the community.
Erica Vowles: So dare I say it, this is an avenue that could benefit from a bit of mediation or alternative dispute resolution?
Derek Wilding: Yes, I think definitely it's a case of opportunities for people to make amends, to maybe take the approach that is taken in the media where the kind of intervention of something like a clarification, a correction, an apology, in reasonably formal terms but in something that is meaningful, can actually have that effect of addressing someone's concerns and doesn't lead to a claim for some kind of financial compensation that may well not be successful anyway.
Erica Vowles: So, Dr Derek Wilding, some people will be listening to this conversation with their thumbs hovering over their phones as we speak. What's your advice to people who might be prone to letting off a bit of steam online, on Facebook or on Twitter or in other forums, what's your advice to them about how to avoid defaming people?
Derek Wilding: Well, I think under the laws that we have at the moment, 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, 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, so 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.
What this study and what some of these cases show is there's a real tension here, that there are some cases where people have had very serious accusations made against them on social media and in other forms of digital publication, and there does need to be some potential remedy for that. On the other hand, there is a series of matters that do not reach the kind of threshold that we would imagine would be subject to defamation law. And so what is needed here is some kind of test, those cases that should be addressed by the legal system and those that should be addressed some other way.
Erica Vowles: Derek Wilding, the co-director of the Centre for Media Transition at UTS. We've put a link to the study on our home page, makes for interesting reading. Just head to the RN website and select Law Report from the drop-down menu.
On RN, Radio Australia, News Radio and on your smart device, this is The Law Report. I'm Erica Vowles.
Source : http://www.abc.net.au/radionational/programs/lawreport/2018-03-20/9555266