Defamation is only the tip of the iceberg
Defamation is only the tip of the iceberg according to lawyers who say social media-related challenges could range from workplace bullying claims to commercial disputes.Fairfax Media reported on Monday that the NSW District Court awarded a teacher $105,000 in damages in Australia’s first Twitter defamation battle to proceed to a full trial. The court held that a former student had defamed music teacher Christine Mickle, making false allegations about her on Twitter and Facebook. Lawyer Stuart Gibson said that the case would clarify this area of law. “The same principles [of defamation law] apply [to social media] except that you’re likely to be easier to prove the grapevine effect by social media through discovery and hence amend your claim and possibly seek the cap on damages which is $355,500 at the moment… across the country.”
Mr Gibson said that more claims had been made in the past five years as smartphones made social networks more accessible to more people. “[On social media] everyone becomes a publisher and for the purposes of defamation I suppose potentially liable depending on what they publish.”
He said that while the court lists did not demonstrate a big market for social media-related legal disputes, academic textbooks had been written about the role of the internet in defamation law, which was now part of the curriculum for law students. Law firms, including his, had also started to advertise “social media law” among their services.
Maurice Blackburn employment lawyer Emeline Gaske said it was “inevitable” that people would use exchanges on social media networks as evidence of bullying by co-workers or in the workplace, particularly as the line between home and work hours blurred.
“We don’t have the same cooling-off time before people post things that they come to regret later,” she said. “In the past someone might be at home and feeling angry at a colleague and would not have had an opportunity to say something… until the next day. Now there’s a mechanism for that.”
She argued in the Law Institute Journal that social media posts viewed during work hours could amount to “bullying at work” under recent changes to the Fair Work Act, even if the alleged perpetrator was not at work at the same time.
But Ms Gaske said that the anti-bullying reforms, introduced in January, were not “open slather” for social media claims, because employees still needed to prove that their health and safety were put at risk.
She said that social networks also enabled “employers to monitor behaviour of employees in a way they haven’t been able to before” and to give rise to lawful disciplinary action and dismissal.
She said social networks’ impact on legal disputes was comparable to when emails became a prominent form of communication: “Social media is unique in that it affects all areas of legal practice, both by giving rise to legal claims and by being able to be evidence in legal disputes.”
Fabian Horton, director of Connect Law Australia, said social media also gave rise to all manner of commercial disputes as businesses increasingly used social media to market their brands and communicate with customers.
“Reputation will very shortly become one of the biggest tradeable commodities the internet will work on,” he said. “They’re already creating technologies that will measure, value and market reputation in all its forms, and that includes trust. How much trust does a set of eyeballs place on [an online] persona?”
Legal Affairs Reporter for The Age, posted March 6, 2014 by Jane Lee