Media Law

 

Urgent media law reform required for online defamation in Australia

 

Media Law : Online Defamation

 

Media law reform is urgently required for Australian citizens regarding online defamation in order to prevent citizens from acts of wrongful behaviour, spreading of misleading information, and attempts to lower their reputation using social media. The latest amendment of defamation law reform in Australia occurred a decade ago. Since then, a wide range of social media outlets have been created and are now used as a primary communication tool not only between the public and the politicians but also among people across the world.[1] In particular, social media such as Facebook, Twitter, Instagram, Pinterest and Tumblr have profoundly developed and changed the public's communication style which can often lead to defamation litigation.[2]

In Mickle v Farley,[3]  Farley, a high school student who was the respondent, published defamatory information about his NSW school music teacher, Christine Mickle via Twitter. The comments were instantly spread by sharing functions and the plaintiff was forced to leave the school immediately and could only return to work on a limited basis. The plaintiff sued the respondent and was found entitled to a reward $105,000. Eventually, the respondent declared bankruptcy after being ordered to pay.

This was the first social media legal litigation in Australia which opened the door to the idea of amending the current Defamation Act 2005. Currently, the term 'social media' is not contained in section 4 of the Defamation Act. Also the degrees of defamatory images and videos possible on social media are not defined at all. Nowadays, people tend to share images and videos rather than typing words through social media, therefore, there should be clear guideline to decide the degrees of defamation made possible with images and videos.

The word defamation in legal terms covers slander and libel. Slander is defamation by the spoken word while libel is defamation by the written or printed word which is in a permanent form.[4]  Due to high volume of people now using social media, libel has become the main category of defamation claims. Even though the European Union court has ruled that an individual’s data must be deleted on request by Google, Google still allows people to only partially delete articles they published .[5] Therefore, once an article is published, it will permanently remain until it is discovered and possibly further unless deleted from the search engines.

 

In Duffy v Google Inc [2015],[6] Dr. Janice Duff, a former senior of South Australia Health Department, found six defamatory articles which were published by the 'shaming platform' between 2007 and 2009. She requested the of removal of these articles from the website but the defamatory articles were not completely removed until 2011.  She took the action of defamation litigation against Google in which she argued that she was defamed due to the way Google auto-completed search terms.

Therefore, one of the urgently needed sections of defamation law reform is to redefine the limitations of online defamation action. Options under current defamation law are very limited in Australia as plaintiffs are only given one year to take action from the date of publication.[7] This limited period must be extended as normal people who do not have sufficient knowledge of the internet often do not find the defamatory articles her/himself unless they purchase online reputation management software which is extremely expensive or hire experts who can help to find all of the defamatory articles available on search engine sites. The online reputation management software collect all the user’s information either personal or business related. There are many IT companies that have developed and provided online reputation management service such as Yotpo, Grade.us, Reputology, Cloud90, Hootsuite, SproutLoud and so forth. The service price varies from free, which offers very limited search functionality, to few hundred dollars per month.

The removal or extension of the limitation period within defamation law reform would bring significant changes to journalists. Currently they are not free from defamation claims until an article is completely deleted from the search engines. Additionally, public interest will not be the best defence any more since even unpopular articles can severely impact the lives and communities of an individual. Therefore, the reform or amendment should contain a specific section regarding the defence against defamation claims for journalists and give them the authority to provide fair and accurate information to the public.[8] In some cases, even when the journalists is able to avoid a defamation case, they may breach the Information Privacy Act 2009 (QLD).

David Rolphy, an associate professor of media law at the University of Sydney, said that the defamation law should not be rushed and should not be a reaction to one particular case.[9] I agree that the defamation law reform should not be influenced solely by a few particular cases, yet it should be addressed urgently since it does not contain a solid definition of online defamation and in particular, social media defamation. Also, the current penalties are too weak to deter online defamation. More strict liability should be assigned to the defamer so that the defamer should be penalised monetarily while also having the burden of deleting all the defamatory information published by the defamer online.

Currently, the maximum amount of damage resulting from a defamation suit is $250,000. This amount is regulated in section 35 Division 3 Part 4 in the Defamation Act 2005 (QLD).[10]  The current maximum amount of damage should be increased by up to $550,000 - $750,000 so that people are more aware of their actions and will be likely to stop nasty posting to social media. I assume that it will dramatically reduce and control the manner of using social media.

 

* Received 6/7 (Distinction) : Weekly assessment + essay + final exam


References

Gillies,  P  and Selvadurai,  N. 2008,  Marketing Law, Federation Press, Sydney.

 

Horowitz, M and Bollinger, D. 2014, Cyberbullying in Social Media within Educational Institutions: Featuring Student, Employee, and Parent Information, Rowman & Littlefield, Maryland.

 

Perarson, M and Polden, M. 2015,  The Journalist's Guide to Media Law,  Allen & Unwin, Sydney.

 

Sissons, H. 2006,  Practical Journalism: How to Write News, SAGE, New York.

 

The conversation 2015, 'Hockey v Fairfax should start the debate on defamation law reform',  2 July 2015  <https://theconversation.com/hockey-v-fairfax-should-start-the-debate-on-defamation-law-reform-44012>.

Warman, M.  and Barrett, D. 2014, 'Google must delete your data if you ask, EU rules', The Telegraph, 29 April <http://www.telegraph.co.uk/technology/google/10827005/Google-must-delete-your-data-if-you-ask-EU-rules.html >.

 

 

Legislation cited

Defamation Act 2005

Information Privacy Act 2009 (Qld)

 

 

Case cited

Duffy's case: Duffy v Google Inc [2015] SASC 170.< http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/sa/SASC/2015/170.html?stem=0&synonyms=0&query=title(Duffy%20and%20Google%20)>.

 

Farley's case: Mickle v Farley [2013] NSWDC 295. < http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWDC/2013/295.html?stem=0&synonyms=0&query=title(%222013%20NSWDC%20295%22)>.

[1] Peter Gillies, Niloufer Selvadurai, Marketing Law (Federation Press, 2008) 149. Australian Law Reform Commission released the  Defamation and Privacy in 1979 then enacted  the uniform Defamation Act 2005.

[2] Merle Horowitz, Dorothy M. Bollinger, Cyberbullying in Social Media within Educational Institutions: Featuring Student, Employee, and Parent Information (Rowman & Littlefield, 2014) 56-57. Defamation litigation is that the plaintiff must prove that the defamatory imputation of the publication or the communication by the defendant cause special harm to the plaintiff to take an action of defamation claim.

[3] Mickle v Farley [2013] NSWDC 295.

[4] Helen Sissons, Practical Journalism: How to Write News, (SAGE, 2006) 246.

[5] Matt Warman and David Barrett, 'Google must delete your data if you ask, EU rules' (13 May 2014 ) <http://www.telegraph.co.uk/technology/google/10827005/Google-must-delete-your-data-if-you-ask-EU-rules.html>.

[6] Duffy v Google Inc [2015] SASC 170.

[7] Mark perarson and Mar polden, The Journalist's Guide to Media Law, ( A& U, 5th ed) 226. There are exception that the court allows the extension to three years under reasonable circumstance. In the case of the online publisher, the time starts when the material is downloaded and read.

[8] Current possible defence of the journalist are truth, fair report, honest opinion, fair comments, qualified privilege and political discuss which should pass the Lange test.

[9] David Rolph, Hockey v Fairfax should start the debate on defamation law reform (2 July 2015)<https://theconversation.com/hockey-v-fairfax-should-start-the-debate-on-defamation-law-reform-44012>.

[10] Section 34, 35,36,37,38 and 39 in Defamation Act 2005 (Qld) deal with remedies that in general, the court ensure there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.

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