Internet and mobile telephony technological revolution in the last two decades, has changed the world completely today, in leaps and bounds,
With a click of a mouse, or touch on our smart phones, we buy or sell products, send and receive information, and on a 24/7 basis are in fact connected to the world.
The internet and the mobile telephony developments and revolution have reached a point now, where technological progress is being made at consolidation of the many of the disparate and stand-alone technological developments.
This aspect alone is now bringing about power, control, comfort, ease, and globalisation of people’s ability to interact with anyone in the world in a real time 24-hour, 7-day basis, throughout the year, right from the palm of their hands.
This applies to either verbal communication or an ability to instantly do transactions, publish photos or text, add or delete content digitally on electronic message boards, electronic mail, text messages, and access and manipulate, internet pages like Facebook, Twitter, YouTube, Instagram, and the like.
Smartphones in one’s hand, connects people to the world instantly at a touch of the pad, without even the need to visit one’s desktop computer, an internet café nor the work place.
The majority of people in Fiji, who frequently publish content on Facebook, Twitter, blog sites, Instagram and YouTube are often laymen, students, businessmen and women, academics and public figures, who would not necessarily have had to deal with issues of defamation previously.
Defamatory content thus can reach thousands of people, and if it goes viral, many millions of people within minutes and hours.
Defamation via the digital social media or the traditional print media of newspapers, handouts, and magazines is treated the same way, without even the need to amend the present defamation legislations, as was clearly evidenced in the Australian and English jurisdictions, in a few ground-breaking cases recently.
This clearly means that you can be sued for any defamatory statements you post online, either on your own private page or someone else’s page. The person who lets defamatory content, written by you, sit on their site, are also fully liable for costs and damages.
In the Australian and English examples, where a number of prosecutions have been successfully undertaken by the expansion of the present definition of defamation, cases prosecuted have clearly established that defamation already extends to the internet within the present Australian and the English legal systems.
Fiji’s legal system and that of Australia, New Zealand and the United Kingdom in areas of common law are similar, and it appears that the courts in Fiji will also use as a guide, precedents of recent judgments of the Australian and the United Kingdom Courts, who already have had the opportunity to deal with cases of social media defamation recently, for the first time, in their legal history.
This should be a wake up call for anyone using social media to be careful about what they post.
A split second decision to share information through social media could be very expensive, as the social media is no different to other forms of publishing in terms of defamation.
The fact that social media can assist in broadcasting it further, adds further risks for aggravated damages.
Defamation law needs to walk a fine line and balance between the right to freedom of speech and the right of a person to avoid defamation.
On the one hand we need to be able to freely talk about our experiences in a truthful manner without fear of a lawsuit, anything mean, but true.
On the other hand people have a right to not have false statements made that will damage their reputation. Discourse is essential to a free society, and the more open and honest the discourse, the better for society.Defamation occurs when a person intentionally spreads information about another person, group or company, who damages their reputation or makes others think less of them. This can also be in any form of ridicule but does not cover where truth is involved.
Regardless of the medium of expression — internet, mobile phones, radio, print — defamation is actionable, regardless.
A person can be defamed by what one writes about him or her on Facebook, Twitter, through photos posted online, or anything else that would constitute defamation in the print media, like your daily newspaper.
Though defamation via cases involving the internet and social media, are relatively new, and no prosecutions have been done through our Courts in Fiji, the same principles would apply as established clearly by the Australian and English jurisdictions recently.
People who go online should also note carefully that a person who did not create the defamatory material is also fully liable for damages, for sharing, “re-tweeting” a tweet, or even keeping it on their electronic message board. Truth or statements which were an expression of honestly held beliefs or an opinion can be used as a legitimate defence to defamation.
It is defamatory to state that someone is corrupt, dishonest or disloyal or to state that someone is suspected of committing or alleged to have committed an illegal act. Users need not ridicule anyone, state that someone has a contagious disease, suffering from insanity, or say anything that is likely to cause the person to be avoided or shunned, even if there is no suggestion of bad character.
Australia’s first social media defamation case proceeded to full trial recently, with a former student ordered to pay more than AUD$105,000 (F$170,461) in damages over a series of defamatory posts on Facebook and Twitter, about a teacher at his school.
This was the first time decisions about particular tweets have progressed this far in Australia. Another thing to note is that you do not have a right to freedom of speech, particularly if you are a public servant.
In a recent case, an Immigration Department employee critical of Australia’s refugee policies, politicians and some of her colleagues, was dismissed, after the Department managed to find out who the anonymous tweeter was. The federal court agreed, finding that there was no unfettered freedom of political communication for her in the process.
In Australia, a man has successfully sued his estranged wife for defamation over a Facebook post that suggested she was a victim of domestic violence, after the Court found that she could not prove the statement was true.
The plaintiff, a teacher named Miro Dabrowski was awarded AUD$12,500 (F$20,293) in damages at the West Australian district court in December 2012 by Justice Michael Bowden.
The offending post, which was posted on his estranged wife Robyn Greeuw’s public Facebook profile in December 2012, read: “Separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system to keep my children safe.”
Facebook is a public forum, and anything that you would not publish in a newspaper, should not be put on Facebook. The internet is so instant, that once people have a thought, they write it — and it is “published” and becomes a public item. It is not just limited to your friends who are seeing it.
Once published, your statements are there on record for ever, and you have lost control of your statement and cannot take it back. Even if you delete it, people may have taken a copy, screenshot and photo or shared, forwarded or “re-tweeted” it.
It may suffice to end this article on a small snippet from an Australian Court judge’s statement for the plaintiff in one of the cases relating to social media, and one which we all have to take due note of:
“When defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”
* Dr Sushil K Sharma is a former associate professor of meteorology and head of the Meteorology Department at the Fiji National University. The views expressed are his and not of this newspaper.
