Courtroom Consequences of a Like

The Legal Weight of Social Media in Defamation Cases… Unsplash

The evolving digital landscape has profoundly reshaped human interaction and, consequently, the complexities of defamation law. Australian courts are actively adapting to the unique challenges posed by social media platforms, especially concerning how digital actions, such as 'likes' and 'shares', contribute to the dissemination and potential harm of content in defamation claims.

Amplifying 'Grapevine Effect' on Social Media

Social media platforms have fundamentally altered communication by enabling individuals to become publishers without traditional editorial oversight, significantly contributing to the rapid distribution of content, often identified as the 'grapevine effect'.[1] This ‘grapevine effect’ describes how defamatory remarks can be spread passively, intensifying psychological harm and obscuring efforts to track the case once published online. While the concept isn’t new, social media has dramatically amplified it within the last 10 years, allowing defamatory materials to ‘go viral’ more rapidly than before.

The impact of this phenomenon can be traced to courts remarks about the "evil" defamatory nature of rapid social media communications in Mickle v Farley, where damages were awarded for sustained psychological harm.[2] Similarly, Rodgers & Anor v Gooding showcased how defamatory posts in a Facebook group with nearly 5,000 members can lead to widespread dissemination, causing long-term detriment to the plaintiffs’ lives and reputations.[3] Even the informal aspects of social media such as emojis, are recognised as capable of conveying defamatory meanings.[4]

The sharing of malicious content created by others can be considered defamation, with a mere 'like' extending its reach in the public sphere and amplifying the psychological harm caused to the plaintiff.

The “grapevine effect” can be particularly harmful on platforms like Facebook and Instagram when defamatory content is shared among the plaintiff’s personal network of friends and family, increasing their reputational harm and distress.

Australian Defamation Law in the Digital Era

Defamation is eloquently defined in the Oxford Dictionary as ‘the action of damaging the good reputation of someone'. Thus, defamation in Australia may be brought to the courts’ attention when false statements injure an individual’s or entity’s reputation through publication. The digital age has expanded this beyond traditional print or spoken words to encompass diverse online content.

In accordance with the New South Wales Defamation Act, a defamation claim will succeed if a plaintiff proves there was:

• A publication of the material either orally or in writing, a reasonable person would identify the published content as damaging to someone's character;

• The publication of the harmful material resulted in, or had the potential to result in, significant damage to the affected party's reputation and;

• The individual alleging defamation can be recognised or identified within the published content.[5]

“Publication” in the digital era is broad. When content like a broadcast is clipped, shared, or commented on online, it enters the public domain beyond its original airing, meaning each instance of defamatory content being shared or viewed can be considered a separate publication.  “Identification” doesn’t require direct naming but assesses whether an ordinary person of intelligence would understand the content to concern the plaintiff.

The “serious harm” element introduced as part of New South Wales’s 2020 Defamation Amendment Act , mandates that plaintiffs demonstrate the likelihood of significant damage to their reputation.[6] This threshold, determined by a judicial officer, can be decided pre-trial to encourage out-of-court resolutions for minor claims. Courts accept various social media activities as evidence, including screenshots, timestamps, platform analytics, and even likes, provided their authenticity and context are preserved.

The Lehrmann Defamation Case

One can recall Lehrmann v Network Ten Pty Ltd as a vivid case study on social media’s role in defamation. Lehrmann sued Network Ten and Lisa Wilkinson over an interview with Brittany Higgins concerning an alleged sexual assault.[7] Justice Lee recognised the original broadcast and its online transmission must be treated together as part and parcel of the publication environment - a clear emphasis on the integrated nature of digital dissemination in modern defamation law.[8] Identification was established even though Mr. Lehrmann was unnamed in the broadcast, as Justice Lee considered whether an average viewer or reader could reasonably think the complaint was about Mr Lehrmann, especially when online commentary and hashtags could fill in perceived gaps.[9]

Identification was confirmed by individuals with special knowledge, connecting Mr. Lehrmann to the unnamed details in the program and external discussions. The trial also highlighted how public statements, even by associated parties, can have significant legal repercussions. Ms. Wilkinson's Logies speech, where she implicitly endorsed Ms. Higgins' credibility, was found by Justice Lee to be "grossly improper and unjustifiable" and "apt to cause disruption to the criminal justice system" by potentially imperilling Mr. Lehrmann's right to a fair trial.[10] This demonstrates how actions outside the initial publication, amplified by media attention, can factor into defamation proceedings.

The intersection of defamation law and social media shows how our digital world has complicated the legal system. Courts now wrestle with questions that would have seemed absurd decades ago - like whether clicking 'like' or sharing a post can cause legal trouble. With new rules like the "serious harm" threshold,[11] and cases showing real consequences of online behaviour, social media clearly isn't just casual interaction anymore. As platforms continue shaping communication and information spreads instantly, Australian defamation law must keep evolving to balance free speech with protecting reputations in our connected world.

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Edited by Sanaaya Butala

1. Wayne Davis, ‘Social Media Defamation – Complete Guide’, Stonegate Legal News & Articles (Article, 22 June 2024) https://stonegatelegal.com.au/social-media-defamation-complete-guide/.

2. Mickle v Farley [2013] NSWDC 295.

3. Rodgers & Anor v Gooding [2023] QDC 115.

4. Burrows v Houda [2020] NSWDC 485.

5. Defamation Act 2005 (NSW).

6. Defamation Amendment Act 2020 (NSW) (‘The Defamation Act’)

7. Lehrmann v Network Ten Pty Limited [2024] FCA 1226.

8. Lehrmann v Network Ten Pty Limited (Trial Judgment) [2024] FCA 369.

9. Ibid.

10. Ibid.

11. The Defamation Act (n 6).