Spending time on social media is our national pastime. As you are reading this you should agree with at least that much of what I have to say. Our obsession with social media reminds me of going on a holiday years ago and encountering a kelpie who loved to play ball. I was thrilled to kick the ball to the pup who unfailingly retrieved it with single minded focus. The owner was less impressed and told me “the tennis ball had ruined a good dog”. These days as I look at my loved ones, whether it is the first thing in the morning or the last thing before bed, I cannot help but wonder how may husbands, wives and kids have been ruined by smart phones and social media but I digress. Whilst our interconnected lives have no doubt brought us the joy of seeing updates from friends who move houses, find new love and who celebrate life it can also inject searing pain into personal and professional relationships when harassing and offensive posts are shared tens of thousands of times in days on social media.
I was recently involved in just such a matter where a service provider discovered that a disgruntled consumer of their services posted a highly inflammatory article on social media. The post went viral, was shared thousands of times and generated in excess of 10 thousand comments in just under 2 days. Many of the comments contained abuse directed at the service provider who suffered a great deal of distress upon discovering this. And to add insult to injury the publication was picked up by the media and shared even more widely. After exhausting all options in trying to get the social media provider to remove the content the client naturally wanted to know what could now be done and enlisted the help of our defamation lawyers.
From a remedial perspective, there can be a number of options to try and remove an offensive publication. The options include the laws about defamation, the Australian Consumer Law (for misleading and deceptive conduct in trade or commerce) and perhaps even certain sections of the Criminal Code. Usually, the first step is to formally request that the offensive content be removed under threat of legal action being taken. Interestingly, in our experience the recipient of such a request is often unwilling to remove the content at least until after they have taken legal advice and thrashed the issues out with their lawyers. Sometimes that means the disparaging content could be live on social media for at least 7 to 21 days (if not longer). In many instances, the offensive content ends up being removed but in rare cases an approach to the court will be needed to seek injunctive relief (if available) provided the client is prepared to pay for what usually ends up being an expensive court application.
To find out more about the options available to you if someone has published something offensive about you or your business contact Litigant on T: 61 2 9199 4530.
Further reading: -
• Seafolly Pty Ltd v. Madden (2012) 297 ALR 337;
• Madden v Seafolly Pty Ltd (2014) 313 ALR 1;
• Nextra Australia Pty Ltd v. Fletcher [2014] FCA 399
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