The Legal Perils of the Need to “Overshare” on Social Media – Stuart Gibson

9 12 2015

Stuart picture (1)No stranger himself to the laws of defamation himself in the late nineteenth century Oscar Wilde, once famously said: “There is only one thing in life worse than being talked about, and that’s not being talked about.”

There is no doubt Wilde would have embraced social media like no other. He would have held them all – facebook, twitter and Instagram accounts. Maybe even a Tinder account!

But at the same time he may have been haunted like the rest of us by the legal perils of “Over-sharing” in Social Media, a trap to both lay people and established media alike.

The Internet is now integral to our lives. Almost everything we do is dependent upon it – socialising, banking, shopping – you name it. And not only that – there’s an “App” for virtually everything!

And its also become a tool for the unhinged to launch online attacks on innocent people, whether it be libel, harassment or invasion of privacy.

The problem is not only that third parties spread our data and information over the internet – its also the amount of information that we choose to catapult into the public domain by not only posting it but by the extent to which we want to “share” our offerings. Whether it be a “selfie” or an “usie” (i.e couples version of a selfie) that you post on your Facebook Wall or some other random “thing” that you tweet out to the world at large, we all want to publish – and to a large audience to boot.

But its not just the “personal” or “social” consequences of over-sharing that we need to be concerned about. Its the legal as well. And its not just Wikileaks that’s landed in defamation hot water. It seems everyone from celebrities, to Mums and Dads and even traditional media that are paying the legal bills for over-sharing on social media.

Consider this. US rock star Courtney Love has paid a high price of well over $750,000 in total for things she’s written on social media – the first a rant on Twitter about how she was billed for custom clothing by designer Dawn Simorangkirn that cost her $430,000 in a defamation damages payout. To top that off another cheque followed to the same complainant in the sum of $350,000 where she ended up back in trouble by accusing the same complainant of theft on Howard Stern’s radio show.

More locally though, even taking into account the cap on defamation verdicts being $376,500, Courts are dishing out some very nice verdicts and particularly in the area of social media defamation. That is largely attributable to the fact that material published, posted, shared, liked, linked has what the Courts consider to be the “lurking presence on the Internet”. This means that our Courts are awarding big sums because what we post and share ends up in the lap of so many.

Several years ago I had a case involving the circulation of an email by a person to a close group of ten “friends” accusing a Melbourne Bar of being a venue for date rape. Although she never intended to impute the venue was knowingly involved in the shocking conduct, the email nonetheless bore that imputation. Within three weeks the email had circulated to 9,000 readers. The company promptly sued and was handsomely paid out in compensation for its lost custom (companies can sue for corporate defamation if they have under 10 employees or for malicious falsehood without restriction).

In Cripps v Vakras, the Victorian Supreme Court recently awarded AUS$450,000 in damages to a Vietnam veteran and gallery owner who sued in relation to an online publication that wrongly accused him of being amongst other things a racist, a bully and stupid. The large amount was attributable to the article’s falsity and the “grapevine effect”.  The decision was, however, appealed and a re-trial was ordered.

In the case of Polias v Ryall & Ors, the New South Wales Supreme Court awarded a poker player AUS$340,000 when he sued four of his former friends for defamation following comments posted on Facebook about a trip to Las Vegas.

And most recently in Pedavoli v Fairfax Media, the parent company of this publication copped a defamation payout of AUS$350,000 for a hard copy and online publication after an article wrongly identified the complainant of having had sex with her male students.

The cases are clear – think carefully before you hit the send button.

Stuart Gibson is a partner at Mills Oakley in Melbourne and a media commentator


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