Australian defamation laws are struggling to stay in step with community expectations, leading to calls for reform to accommodate the social media revolution. Briana Everett reports.

Social media technology, with its ability to allow users to instantaneously comment on just about anything that's posted online, is rapidly changing the world of defamation law.

Now, thanks to the likes of Twitter, Facebook, blogging, forums and the increasingly interactive nature of online publications, members of the public are publishing content everyday; they are voicing their opinion about anyone and anything, reviewing hotels and restaurants, critiquing new products, complaining about bad service or commenting on articles written about others.

It's these types of communications that are exposing people to a growing number of individual defamation claims, thanks to a widespread lack of awareness amongst social media users and an assumption that different rules apply when it comes to things being said on the internet.

"There's clearly a continuing divergence between what the public thinks it can say on the one hand and what the law and the courts say you can say on the other," explains Blake Dawson partner Robert Todd. "That divergence is exposed in areas like social media and, in particular, review sites."

Today's social networking technology enables individuals to comment on articles, blog posts or the tweets of friends and colleagues and many of them don't hold back, generating greater scope for individual claims.

"People, rightly or wrongly, assume that if they go somewhere and say something that they're entitled to do it ... I think they suspect they have some right of free speech, which is obviously a misapprehension," Todd says.

Piper Alderman partner Simon Ward agrees and notes how people tend to say things on Facebook or blogs while being oblivious to the consequences.

"People seem to think they can, with impunity, rip onto Facebook or blogs and say quite outrageous things," Ward says. "It's becoming quite an issue because [the statement] is spread so quickly and widely. A lot of damage can be done."

As the damage is realised and more of these claims are made, members of the public are gradually beginning to realise that every tweet, every post and every comment they make will be subject to defamation law and that anyone can be exposed to a claim.

As a result, defamation claims have changed and include more elements than they did before. Today, according to Kelly & Co partner Peter Campbell, almost every claim brought against a media organisation relating to an article or broadcast will also have a related claim regarding the same content which appeared on that organisation's website, as well as the comments made by members of the public that are potentially defamatory.

"We're seeing more and more claims where plaintiffs, who are having a go at media defendants, aren't just looking at what was put in the paper or what went to air," Campbell explains.

"They go to the [website], have a look at what comments are being put on there and include that as part of their complaint. That's a fairly new phenomenon that people are awake to now and it's something we're seeing more and more of."

The new challenges

The rapid development of social media technology is presenting a significant challenge to existing laws of defamation, as community expectations change and the law struggles to stay in step.

According to defamation lawyers contacted by Lawyers Weekly, if the laws are to operate effectively in the current environment, it shouldn't just be about protecting large media organisations but also about making sure the law is in step with community expectations.

"There's a wider issue than the Act itself. [It's] grappling with how we deal with the whole issue of social media," Todd explains. "The law is not in step with community expectations, particularly in the areas of qualified privilege and in relation to comment. The public would be shocked to think that when they went on TripAdvisor that they weren't protected."

Todd claims that if the law of defamation is to work, it has to be something the community accepts and wants.

"I think there is this growing problem between where the law is at and where the community is at and frankly, unless that gap is resolved, the law starts to fall further into disrepute," he says.

As social networking technology moves much faster than what the law can cope with, questions are raised as to whether specific laws need to be enacted to address the issues social media presents.

"I think we'll see, over the next year or two, governments looking at whether they need to enact specific laws to deal with some of those things because there's not much that can be done as it is set up at the moment," Campbell says.

In 2006, uniform defamation laws came into effect in every Australian state and territory, representing a significant development in the defamation area.

However, while there have been a number of significant changes under the new legislation, at the time of its enactment the Federal Government recognised that there would be some deficiencies in the law and substantial room for improvement, requiring further reform in the future. In 2010, the uniform legislation is set to be reviewed, five years after it was first introduced.

Some of the significant changes introduced by the uniform legislation included the removal of the right of corporations to bring an action for defamation, the introduction of a cap on damages for non-economic loss and a new regime to encourage publishers to give prompt apologies. According to some defamation experts, these changes have tipped the balance further in favour of the large media organisations.

"In theory, it [the legislation] should produce a consistent result," says Campbell. "You've also got the cap on damages and things like that so you're not getting huge variations. Certainly, in the past there used to be some forum shopping."

Whilst the defamation laws in Australia aim to achieve a balance between the protection of the freedom of communication and the reputations of individuals, some lawyers claim that the technicality of the legislation regarding defamation defences hinders the discussion it's aimed at promoting.

"It's fair to say that the law of defamation has a level of technicality ... and that causes a real problem," Todd says. "The great irony is that a lot of these defences were initially developed for the purpose of enabling discussion. It's just that it becomes so steeped in technicality."

With no guaranteed right to freedom of speech in Australia, other causes of action have been utilised as an alternative to defamation, such as injurious falsehood or misleading and deceptive conduct under the Trade Practices Act. And now, privacy is emerging as a potential game-changer.

Although there is no right to privacy in Australia, there have been calls for privacy laws to be introduced in line with the United Kingdom.

"The privacy side of things is becoming a much bigger issue and we're on our way to having a statutory cause of action for invasion of privacy," says Campbell. "[We're] going to have a federal cause of action for the invasion of privacy and I think that's really going to change things around. I think it will have a chilling effect on the way media reports things."

While some defamation lawyers doubt that Australia will see privacy laws anytime soon, others expect that within the next 12 months to two years, privacy laws will be enacted in Australia. "I assume over the next 12 months we'll see it finally come into force and I think it will have a substantial impact on the way people go about challenging these sorts of things," Campbell says.

With the current legislation due for review this year and increasing calls for reform, the Australian defamation space is set to be shaken up as it attempts to keep up with the world of social media.