Social Media: the Free Speech Paradox – Patrick George

People have been surprised by the freedom with which they can use social media and say exactly what they think.  Uninhibited, unrestrained and carefree commentary can be seen on platforms such as Twitter and Facebook at any time of day.

At first it was all so easy and cost so little to participate, but then anonymous strangers took it to another level and social media became a forum for abuse, bullying and hate.  Now these channels can be used as a weapon to spread vile accusations against innocent people, with the ugliness spreading quickly and widely.

Defamation

Criminal laws apart, defamation law provides a means to stop this abuse and malice.  Money is awarded to restore reputations, vindicate victims in the eyes of the public and provide some solace for the distress and harm suffered.  It is not a perfect remedy but for those who are ordered to pay damages, money speaks.

A recent study by the Centre for Media Transition at the University of Technology Sydney found there has been a substantial increase in digital defamation cases in Australia in recent years and that many of these have arisen from social media conflicts between individuals.

It has been claimed that these cases are clogging up the courts here and, given the excessive costs of these cases, there is a pressing need to reform defamation law.At the same time, Rebel Wilson was awarded A$4.56m in her defamation case against Bauer Media: [2017] VSC 521, and she is reportedly seeking A$1.4m in costs.  This result has also sparked calls for reform as the award is expected to lead to a surge in cases with plaintiffs seeking similar size awards.  Since then, there has been another substantial award of A$2.623m in Rayney v State of Western Australia [2017] WASC 367 and a claim for A$4.8m made in Wagner v Harbour Radio Pty Ltd, with the trial currently being heard.

Reform

Yet calls for reform need perspective and balance having regard to the incredible change in the way we communicate since Facebook was established in 2004 and Twitter in 2006.  The increase in digital defamation cases is an inevitable consequence of the freedom of speech which social media and the Internet provide.

Social media, and for that matter the Internet, were not the force they are today when reform of the defamation laws was last properly considered in Australia in 2004/2005.

The law provides a delicate balance between freedom of speech and freedom from attack on reputation.

The present Defamation Act enacted uniformly in each State and Territory of Australia in 2005, involved compromises of both freedoms.  Australia is a federation of States and Territories with 8 jurisdictions.  The legislation was a political compromise reached at the time by State and Territory governments after years and years of debate and disagreement.  It is not now a straightforward matter of any one State or Territory Government deciding to change the law in Australia.

The quickest route to reform is by the Federal Commonwealth Government legislating its own Defamation Act, which by virtue of the Australian Constitution, would override the current uniform State and Territory Acts to the extent of inconsistencies, under the Constitutional power over communications.

Serious Harm

It has been suggested that Australia should, by way of reform, adopt the UK threshold, that a claimant must prove serious harm to reputation as part of the cause of action.  But the threshold in practice has not lived up to expectations and the ambiguity of the term ‘serious harm’ is now before the UK Supreme Court.  It is worth observing that Australian law already provides a defence for trivial claims.  However, this defence is largely unworkable in practice as often there are too many factors in play to find an ‘unlikelihood of any harm’ in any given case.

Australian defamation law imposes a statutory cap of $A389,500, providing an upper limit on general damages.  The issue that has arisen with Rebel Wilson’s case and others is that the statutory cap may be exceeded where malice exists and aggravated damages in excess of the cap are warranted.  That issue is presently the subject of appeals in Rebel’s case and Lloyd Rayney’s case.

In social media cases, the problem is not so much excessively high awards, but the trivial nature of many of them deserving of minimal damages.  While Judges are able to exercise their discretion in respect of awards of costs in such cases, it is the waste of costs and court time and resources that are of concern.  The volume of defamation awards at the lower end of the range together with orders for costs are likely to be the real chilling effect on freedom of speech rather than awards at the upper end which are relatively few in number.

A speedy non-monetary remedy should be explored for social media and internet cases by way of reform, combined with the imposition of a minimum threshold of say 10% of the statutory cap before any damages become payable.  This minimum threshold may provide a more practical measure of a trivial claim, or one not amounting to serious harm.

Single Publication/Safe Harbour

Other notable mooted areas for reform in relation to social media cases are the introduction of the single publication rule and safe harbour provisions for internet intermediaries.  The single publication rule would require a re-examination of the length and application of the limitation period in Australia.  The safe harbour provisions would require a comprehensive understanding of the workings of internet intermediaries and the defence of innocent dissemination.

Professional Journalists

There is also a need in view of the detrimental impact social media has had on truth in news and on responsible journalism for a better defence of reporting in the public interest than presently available in Australia.

It is essential in these times of manipulation of the news and reputations by those with power that there be protection for professional, independent and ethical journalists.

It is fundamental to our democratic way of life to hold power to account.  This is not done by the free speech of hatred, abuse and scandalous accusations seen on social media.  The paradox is that that diminishes the value of free speech and empowers those, who might otherwise be held to account, to indulge in such rampant speech to confuse, mislead and bully.

The professional journalist, acting in good faith, knows the delicate nature of a reputation and how easily it can be destroyed by a single publication in the media, mainstream, or social media.

If a defence is to be offered to a professional journalist in circumstances where the defence is premised on the basis that the defamatory material published is false (or often times unable to be proved to be true) then what margin of error is just or permissible?    It is accepted that surgeons, and indeed barristers, should be permitted a margin of error in the exercise of their professional judgment.  While it is often argued that the lack of such a defence has a chilling effect on freedom of speech, it is equally important to understand that it is the reputation of the professional journalist at stake in these cases, the loss of which is as harmful to the journalist if not more so than the harm to the reputation of the plaintiff.  In Australia, this remains a complex issue for reform.

Balanced Reform

While some such proposals for reform of defamation law in Australia may improve freedom of speech, it should not be assumed that reform would all be in that direction or assumed that all the restrictions on claimants currently imposed by the Act would remain.  If UK reforms were adopted, there would be argument for removing unfair elements on claimants which do not apply in the UK, such as the arbitrary cap on the upper limit of damages and the exclusion of most corporations from bringing actions for defamation.  There would also be a fresh push for the statutory cause of action for invasion of privacy.

Beyond this, however, the single most important issue for reform is the cost of defamation cases, whether social media related or otherwise.  It is the cost for parties, whether as plaintiffs or defendants, which on each side often exceeds any monetary award that might be made.  A cheaper more efficient process and non-monetary remedies need to be found.  It is not simply a matter of removing people’s rights for bringing digital defamation cases.  Access to justice is vital to the rule of law.

*Patrick George is Senior Partner at Kennedys Lawyers in Australia and is the Author of ‘Defamation Law in Australia’ and Editor/Contributor of ‘Social Media and the Law’