Defenses For Social Media Defamation – this article will cover those defenses to defamation that are relevant on the Internet.
The first defense is that of truth which is here and there called the resistance of defense in a portion of the defamation acts in United States
It is a complete defense almost certainly built up that the defamatory imputations are true in substance.
This means that some small immaterial inaccuracies are okay. So long as they don’t aggravate the imputation the difficulty with this defense of course is evidentiary it can be hard to show that something is true but if the defendant can show that the imputation is true, they have a complete defense.
The defense only fails if a reasonable person would draw untrue inferences from what is said some of the defamation legislation also provides particular sections relating to the truth of particular imputations.
For example there are some sections that say that proof that a person was convicted of an offense is conclusive evidence that the person committed the offense and it is therefore okay to say that somebody committed an offense that is considered true there is a similar defense in some of the defamation acts called contextual truth.
Contextual truth operates where there is matter that contains several defamatory imputations and it can be shown that some of those imputations are true.
But not all of them so say there is matter that has three defamatory imputations to a serious and one is not very serious.
If the defendant can establish that the two serious imputations are true then they may be able to rely on the defense of contextual truth because the less serious imputation will not further harm the plaintiff’s reputation.
The plaintiff’s reputation is already damaged by the imputations that are true and the less true imputation doesn’t really further that harm or doesn’t diminish their reputation any further so essentially under this defense.
The court lets that less serious imputation slide.
There is a second defense at common law known as the Polly Peck defense.
This defense looks at whether different imputations have a common sting.
So for example let’s say there is a publication which alleges that Joe stole from Amanda in 2017, Carla in 2018 and Jeff in 2019, the common sting of these allegations is that John is a thief.
If the defendant can prove that Joe did steal from Amanda and Carla then that will be enough to successfully raise the Polly Peck defense.
Even if they cannot prove that Joe stole from Jeff because there is enough evidence there to establish the truth of the common sting that John is a thief moving on from truth there is also a defense of honest opinion.
The defendant must have made an expression of their opinion rather than a statement of fact and it must be clear that this was their opinion.
The opinion must be related to something that is in the public interest.
Now this is not a high public interest test like in some areas of law. It just has to be something that affects the public in some way.
So a review of a play is sufficiently in the public domain to satisfy this criteria and the opinion must also be based on proper material so it must identify what you’re talking about in context.
So again if you’re reviewing a play, the plays the material and it must be clear that you are expressing your opinion about the play this defense is only defeated if the opinion is not honestly held.
So it must be an opinion it must clearly be in a pin and it must be an honest opinion
The final defense is that of innocent dissemination. This applies where the defendant published the defamatory matter as a subordinate distributor and they neither knew nor reasonably could have known that the matter was defamatory; this defense was established to protect those subordinate distributors for which it would be completely unreasonable to hold them liable for defamation or for republication.
So these are people like booksellers, news agents or other vendors, librarians, postal services or broadcasters of live programs where they don’t have effective control over the person making the defamatory statements.
Online mediator might try to rely on the innocent distribution defense but this will normally fail because again remember the test relates to knowledge and if the intermediary knew or reasonably could have known that the matter was defamatory and thus removed it or made some sort of response to it then they will not be able to rely on this defense.
