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Strangers, Facebook And Australia's Defamation Laws
Opinion|Jan 3, 2022

Strangers, Facebook And Australia's Defamation Laws

Australian Defamation Laws Turn Innocuous Statements Into Mutually Assured Destruction.
Damon Miles

If you  thought the state of online discourse was bad in the US, you’re clearly unfamiliar with Australian defamation lawsuits. 

In Australia, one innocuous statement posted online could lead to $60,000 in legal fees. And a recent High Court decision to hold websites liable for user-generated comments is only going to make matters worse. Australians can kiss free speech goodbye. 

Defamation laws in Australia are already abysmal. The cost  of defamation cases are routinely blown out of proportion compared to the damages a court may award.  

A NSW bill noted that for $10,000 in damages, a person should budget $80-90,000 in legal costs.

And the bar to action a lawsuit is far from high. As long as the accuser can prove that someone has actually said something about them, they can sue. From that point onwards the burden is on the accused to prove what they said was true or within the public interest. The accuser bears no burden at all to prove the statements were false or that they dealt significant damaged their reputation.

Under the new ruling, the high costs, the low threshold for litigation, and the lopsided burden of proof all fall to websites and page owners. The effect of this will be that Australians have to be constantly vigilant for any statements made on their posts to protect themselves from defamation lawsuits.

The High Court’s ruling described social media pages as buildings in a public square: Anyone can post anything they want on them, but to permit someone to post defamatory content on your building meant you were aiding and enabling the content to be published.

The question is, where does the liability for these building owners end? The limits of this newly established liability are unknown in the context of social media. The historical point of law was used as an analogy served a realistic purpose. With tighter communities and public gathers at squares, to post defamatory content on a building in the public square would have a real impact on the community with real connections between people.

The burden of moderation for any page or poster on social media now has increased to an impossible level

Forget about the building analogy. The reality is: anyone can comment on any post from any period of time on any public account. The burden of moderation for any page or poster on social media now has increased to an impossible level – and worse yet, barely anyone knows this principle has even come into effect across Australia.

We have no idea how media companies and social media sites will handle this new burden. It’s likely the cost of defamation lawsuits will far outweigh any social benefit of allowing speech on their platform. Social media users in Australia can wave goodbye to free speech. 

Unfortunately, this is a natural progression for defamation law. With the area of law growing throughout 20th and 21st century, it’s not surprising the court has taken the action this way. High level cases have only strengthened the ability to silence people engaging in free speech not only through the law, but through the exorbitant cost that drives individuals into bankruptcy.

With the decision being made in the High Court, it’s now solidified throughout Australia. 

The only way to reverse this decision going forward is to implement law through parliament – which may be  the silver lining needed. There have already been discussions and legislation proposed to require serious harm before suing defamation to reduce  the bankruptcy rate and excessive suing.

This is a drop in the ocean for the amount of reform needed. It’s up to both the voters and politicians to ensure this inequitable law is left with a small legacy. 

 

Damon Miles is a Business Law graduate from Curtin University and Mannkal Economic Education Foundation Alumni. He is currently completing his Juris Doctorate at the University of Western Australia.