Criticised for its blurred technicalities, complex requirements and onerous defences, defamation is one of the most arcane laws in history.

Remember when Pauline Hanson sued the ABC in the late ‘90s because triple j played Pauline Pantsdown’s ‘I’m a Backdoor Man’? Granted, the song essentially said Hanson was a transvestite and the song wasn’t played again, but recently defamation cases have gotten all the more peculiar:

In 2014, a Turkish columnist was hit with a 10-month prison sentence for a tweet about the country’s Prime Minister. The post – which when translated spelt out ‘my chief’ as ‘fuck you’ – was a typo.

To better understand defamation law in today’s digital music industry, we met with one of Australia’s leading entertainment, media and technology solicitors, Brett Oaten.

From diss tracks, mean tweets and publishing screen shots from Facebook, the former band manager helps clear up a few blurred lines.

 

You can’t say whatever you want on social media

The starting point is that defamation is a law which prevents you from saying things about people that would cause the average person to think less of them.

You don’t have unfettered free speech. There are limits on what you’re allowed to say and those laws apply to social media as they do to any other setting. If you say something that would cause the average person to think less of somebody, then that is defamation.

Now, there’s a whole lot of cases about defamation. For example, the cases say that mere abuse is not defamation. So if I say, “Mr X is an idiot”, that’s not defamation, it’s just considered to be abuse. But if I said, “Mr X broke into my house and stole all of my stuff,” and if the average person heard that I had alleged credibly that he was a thief who broke and entered, most people would think less of somebody who was a thief, and so therefore, that is defamation.

Some people think that laws of various kinds, whether it be copyright or defamation, don’t apply on the internet. ‘I found that picture on the internet, therefore I can use it on my album cover’; ‘I can download that TV show because it’s on the internet’. The laws apply equally on the internet as they do in any other arena.

You might defame someone of social media and 99% of the time that person may choose not to care or choose not take action, but if they decide to take action, the fact that you said it on Twitter will not help you.
But if you do, make damn sure you can back it up 

So ‘Mr X’ could sue me for defamation but he would have to show that he had suffered loss as a result of what I said. It’s highly unlikely that he would suffer loss as a result of just some normal person making an unsubstantiated claim.

If, however, someone with a bigger platform said that, somebody with 1 million Twitter followers or somebody from Four Corners or A Current Affair said that, it is quite likely that he would suffer loss as a result.

The greater your platform, the more damaging your defamatory statements are likely to be.

 

The truth will set you free

If you defame someone, if what you say is at face value defamatory but it is true and it is to the benefit of the public that the public know that, then that is a defence.

If I say somebody cheated on their wife, that might be true, but that might not be to the benefit of the public to know that. It’s a private matter. If a politician however who campaigned on a platform of conventional morality, family values, etc. and I could prove that he cheated on his partner, that may well be to the public benefit because it reveals that he is not who he purports to be.

 

Society dictates whether something is defamatory

Some years ago, Jason Donovan sued The Face in England because they had said that he was gay. He won that case. The court held that the average person does not think less of you now if they find out that that is your sexual preference, but that the Face had made him out to be a liar.

30 years before that, it would have been defamatory to call someone gay. This is a case in 1991. The courts reflect the changing social attitudes.

 

The vast majority of cases get settled out of court

All these people that say horrible things on Twitter, theoretically many of them could get sued. But litigation is so expensive that many people particularly people with minimal resources would think it’s just not worth it.

If you were to go to court and sue someone, it would costs tens of thousands of dollars. Your rights under the law are a very different thing than your practical ability to exercise your rights.

This is certainly advice we give frequently: if somebody says something about you, you’ve got to choose whether you want to engage. I believe that most people only really care about themselves, so if somebody says something bad about you on social media, you think that is the greatest disaster in the world if you’re a person of some profile. The reality is I think that most people hear that and then say ‘Oh that’s very interesting’ and then go back to their own problems. Often, you might choose not to sue someone because you make it a bigger story by engaging than it would have been had you ignored it.

Anyone suing for defamation has to make a few decisions.  Do they want to spend a lot of money to do it? Not only that, do they want to spend a lot of time engaging in legal proceedings that they might otherwise spend on more useful pursuits? Do they want to give the defamer more oxygen and publicity than they might otherwise get? That’s not strictly a legal question, but it’s a strategic question that people who have these issues have to consider.

 

Here’s how artists get away with diss tracks

There’s different kinds of diss tracks, obviously. If it’s mere abuse, that’s not defamation. If they say things about them that cause their reputation to be lowered, then that is defamation.

When you sue someone for defamation you’ve got to prove that it defamed you and then you’ve got to prove that you’ve suffered loss.

Theoretically, with some diss tracks, you would not be able to prove that you suffered loss because arguably they made you more famous. And maybe you made more money because of them.

When there is a culture of diss tracks, you may feel that even though you’ve been defamed, you might feel that it reflects badly for you to take legal action when the prevailing culture is to address it in another track.

You can defame someone without using their name if sufficient people can identify them.

 

Media can be sued for publishing screen shots of Facebook posts

If I defame someone on Facebook and you republish what I said, you have potentially defamed the person also.

For example, where there’s parliamentary privilege – where politicians can say things in parliament and they can’t be sued for defamation – you’ll often see newspapers say a person “made claims” about another person, but they do not repeat what the claims are. Or you’ll often read stories where newspapers say a person “made defamatory comments” about another person and they won’t repeat them. If they are defamatory and you repeat them, you’ve defamed the person too.

 

One of Australia’s leading entertainment, media and technology law firms, Brett Oaten Solicitors acts for a wide range of clients: artists, managers, labels, publishers and promoters in the music industry, film and television producers, new media and content businesses and technology start ups, among many others. Go to http://www.brettoaten.com.au/ for more information.