An online comment is lawful as long as it is an opinion expressed. Still, when it crosses into making a factual claim against an individual or organisation, then the defamation process kicks in. It is important to know what separates the two, especially for people writing reviews and other types of online posts. Defamation on the internet can result in legal repercussions in Australia if there are proven elements of a defamatory claim.
What Is Criticism?
Criticism is prevalent in the cyber world. Customers criticise the business, individuals criticise celebrities, and people may even criticise their own product or service.
Posts that read “I did not enjoy the service” or “I feel that the company can do better in communication,” for instance, express opinions rather than making allegations of facts. It is important to take note of the words used, the context in which it is being made, and the circumstances surrounding the post itself.
When Can Online Criticism Become Defamation?
The criteria for a defamatory statement include published material which implies a defamatory meaning and relates to an identifiable person or organisation. The available legal sources provide several aspects that are relevant to the defamation claim, including publication to a third party, identification of the person concerned, defamatory implication and non-applicable defence. Publication of online material may occur via different means including:
- Social media postings and comments
- Online reviews
- Blogs and articles
- Discussions on forums
- Video or podcast
- Website of a business
- Any means of communication of material to another person
The mere presence of material on the Internet does not make it defamatory. Rather, its meaning and manner of publication need to be taken into account.
Fact or Opinion: Why the Difference Matters
One useful way to analyse the online statement is to determine if it states an opinion or a factual allegation. Look at the following examples:
Opinion: “From my personal experience, the service provided was poor.”
Potentially factual allegation: “The owner deliberately stole money from customers.”
The second example expresses a particular allegation that might harm the person’s reputation. If this statement is untrue, published to another person, relates to the person in question and fulfils other legal criteria, it raises the question of potential defamation. However, the context is important since a statement cannot be analysed solely because of its wording.
What About Online Reviews?
As a whole, people can give an honest opinion about something online. At the same time, reviewers themselves have the duty to make sure that what they say is the truth and separate opinions from facts. Before making any accusation, one should ask himself:
- Is the statement backed up by evidence that you can produce?
- Is the statement clearly an opinion or a fact?
- Is the identity of the individual or company identifiable?
- Has the statement been said to someone else other than the subject?
- Can it hurt the person’s reputation?
- Can there be any defence of the statement?
The list is not intended as legal advice but as an attempt to foster responsible online communications.
Understanding Defamation on the Internet
While digital publication can happen rapidly and reach wider audiences than the original poster intended, screenshots, forwarding, reposting, web search results, and commentary may all further circulate controversial statements.
Accuracy and context become critical considerations when describing another person’s behaviour on the internet. If you think you have been defamed, keep screenshots, links, dates, account information, commentary, and distribution information.
Legal professionals can analyse the situation, advise affected individuals, and assist people who are making defamation claims as well as responding to accusations.
Are There Defences to Defamation?
There are various defences in defamation law. In some cases, this may include defences such as truth, contextual truth, honest opinion, qualified privilege, publication of public documents, among others.
One of the reasons behind this is that being defamatory does not mean there is defamation. One needs to consider the publication’s meaning, evidence, context, and defence that applies.
The Defamation Act 2005 WA is the main statute dealing with civil defamation in Western Australia.
Is Criminal Defamation Different?
The term criminal defamation may be misleading since defamation is generally referred to as civil in nature. Section 345 of the Criminal Code of Western Australia specifically provides for criminal defamation.
It deals with those situations where defamatory material about a living person is published without any lawful excuse, with the knowledge of its falsity and disregard of truth and the element of serious harm.
Conclusion
Being aware of the difference between criticism and defamation is an important step in communicating responsibly on the Internet. Defamation lawyers in Perth WA can advise you about potentially damaging publications and your options. When communicating your accusations, make sure that they are accurate, placed in context, identified and published.
