The legal implications of cancel culture were a focal point of the recent Court of Public Opinion panel, hosted via webinar by Unisearch and UNSW Edge. The panel included defamation law barrister Kieran Smark SC, First Impressions principal Paul Blanket, and Professor Valentyna Melnyk of the UNSW Business School.

For humanity, cancel culture has always existed in different forms, explained Professor Melnyk, whether it meant ousting people from groups for bad behaviour, boycotting brands or protesting. Yet, what social media does is make it much more accessible and widespread.

Creating or resharing cancel culture content can come with legal implications. Mr Smark shared insights on how to navigate this skilfully when advising clients who intend to create or share such content. 

When someone decides to make an allegation publicly on social media, many approach lawyers asking how to go about it, noted Mr Smark. 

The first thing Mr Smark does when advising a client is ask if they really feel the need to do it, or if they can achieve their objective in a different way. 

Understanding the possible implications for the content they create is important, he noted, as well as thinking about the response they may get and how they can get the response they intend to elicit without being sued for defamation.

If they decide to go through with it, one of the most effective ways they can cover themselves is to explicitly express it as their opinion — try to make it not come across as an allegation of fact, but rather, to include the term “in my opinion”. 

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“If you say it’s in your opinion, often that makes all the difference,” he stated. 

If you’ve done it the right way and you get sued, yet you’ve said the judgement you’ve made is based on an honest opinion — that can be a very powerful defence, Mr Smark explained. 

“A final way to avoid getting sued is [to] get someone else to say it,” he added. 

For those who are not creating cancel culture content but are instead resharing or retweeting it, they are still legally liable. 

In Australia, retransmitting other people’s content can expose one to legal liability; the law is different in America, he explained; there is a defence for the material you did not create.

By lifting the spread of information, you are liable, even if you haven’t overtly endorsed it or indicated your position, explained Mr Smark.

When the court is attempting to decipher if the sharing of the content added to the defamation of the complainant, they will ask: “What meaning do ordinary people get from seeing this retweet?” 

“You can, of course, share something and indicate that you disagree with it,” he clarified, “and usually, if your disagreement comes across as genuine, you wouldn’t be taken as communicating the original meaning”.

In reality, pursuing cases against people who retweet or share content is difficult, especially if no comment is added, he explained. 

Resharers are often safe because people are less likely to go after you, Mr Smark submitted, “they will go after the content creator, or a mass media organisation that picks it up, for instance, if The Herald or the ABC who writes a story ‘Look what people are tweeting’, that’s who they will go after because they add significant publicity, and they’ve got deep pockets”.