Defamation on the internet

We need to be careful with our actions on the internet.

The laws governing defamation on the internet are the same that govern defamation in other types of publications.
In addition to liability for defamatory material on your own website, you can also be found liable for posting defamatory material on other sites, including webpages such as Facebook or Wikipedia.

This is the case even if you are not the author or creator of the defamatory material. For example you may post a friends video on YouTube.

Even if you think that you are just expressing a personal opinion on a public issue, you may still be liable if you do not have a legitimate basis for your comments and your comments damage the reputation of an individual.

In New South Wales, there is a defence for innocent dissemination for subordinate distributors. This means that a defamation action can potentially be defended by both an Internet service provider and an Internet content host provided that:
• they were not the first or primary distributor of the material
• they were not its author or originator
• they do not have the capacity to exercise editorial control over the content before publication
• they did not know, all could not reasonably have known, that material was defamatory
• their lack of knowledge was not due to any negligence on their part
It is important to give notice, respond to a notice about potentially defamatory material promptly. If you are notified that you have posted defamatory material on a website you should immediately seek legal advice as to whether you may be liable for defamation.

If you consider that the material is defamatory, and you do not have a defence you should remove the material immediately.

Offer to resolve
If someone alleges that you have defamed to them, you can make an offer to make amends. You must do so within 28 days of receiving a written notice of the complaint.
The offer to make amends must also be in writing and must include:
• an offer to publish a reasonable correction
• an offer to pay expenses reasonably incurred by the complainant to the time of the offer.
If your offer is accepted, the matter ends there. If your offer is rejected and you are taken to court, the court may reduce any damages payable provided your offer was reasonable.
It is important to note that if you publish an apology, an apology cannot be used against you as an admission of liability. Also, if the defamation claim is successful, an apology may help to reduce your damages.

By Bernard McAuley
McAuley Hawach Lawyers
11 Fennell Street, Parramatta NSW 2124
Telephone: (02) 9633 1826

The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this publication is accurate at the date it is received or that it will continue to be accurate in the future. We are not responsible for the information of any source to which a link is provided or reference is made and exclude all liability in connection with use of these sources. If you do not wish to receive newsletters from us, please let us know.