introduction essay on defamation

Defamation and Law Essay

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Introduction

Critical analysis of defamation, purpose of defamation laws, criminal or civil offense.

Freedom of speech abuse may lead to harming others as is the case of defamation. Defamation occurs when one person speaks in a bad way concerning another person based on false information. Defamation, therefore, may be viewed as spreading of rumors about a person. Defamation is either a criminal offense or a civil wrong is most countries. This article examines the definition of defamation at length and makes an argument in support of laws which seek to punish those committing defamation offenses.

Defamation has been simply defined as talking ill of another person on grounds which cannot be substantiated: “the issuance of a false statement about another person, which causes that person to suffer harm” (Larson, 2003, p. 1). However, in some cases where the grounds for ill talk may be substantiated, it will still be possible for the defamation offense to be committed. In general, the following situations constitute defamation:

A false and defamatory statement concerning another; the unprivileged publication of the statement to a third party (that is, somebody other than the person defamed by the statement); if the defamatory matter is of public concern, fault amounting at least to negligence on the part of the publisher; and damage to the plaintiff. (Larson, 2003, p. 1)

Defamation laws help to regulate freedom of expression such that the practice of this freedom does not harm others. This is possible because the law makes it clear on what should be expressed freely and what should not be. In the UK, there are principles which make it easier for one point out defamation when it is committed.

Principle 1.1

A limitation placed on the issuance of information should be backed up by the law. Such a law should be easily accessible by all and well defined to make it easy for one to distinguish what is restricted and what is not (Article 19, 2000).

Principle 1.2

A limitation placed against expression on the ground of protecting a reputation should be one that can be proved. The reputation to be protected should be demonstrable (Article 19, 2000).

Principle 1.3

The restriction placed on expression should be consistent with the values of a democratic society, for instance, if it is possible for a reputation to be upheld without placing restriction expression then no restriction on expression should be imposed (Article 19, 2000).

Defamation laws are justified by their focus on protecting reputations. The reputations can be those of individuals or entities. Defamation laws are meant to protect reputations from being damaged through lowering their status or through any other means. Lowering of a reputation of an entity or a person can be through exposure to public ridicule. Defamation laws which tend to protect reputation that is non-existent cannot be said to be legally binding as the reputation to be protected is not demonstrable.

Defamation laws are not meant to hinder the path of constructive criticism, for instance, exposure of corruption deals. These laws do not also offer protection to a nation, flags and other national, traditional or religious objects (Article 19, 2000). Defamation laws do not give a mandate to sue on behalf of a deceased person. Lastly, defamation laws cannot be justified under the following situations:

• Safeguarding national security
• Maintaining order in the society
• Maintaining open relations at the international level

Typically, defamation laws are meant to safeguard reputations. Defamation laws are not meant to do any other thing that may be accomplished by other laws. There are limits to which defamation laws can offer protection, for instance, legitimate criticism on public authorities who engage in corruption deals cannot be restricted by defamation laws.

Defamation laws are not meant to protect the honor of symbols of national interests. Flags among other national symbols which do not have reputations should not be covered by defamation laws. It is however observed that some nations have defamation laws which cover such symbols (The Canadian Bar Association, 2012).

Family members cannot sue any person for defaming the reputation of a deceased member of the family. This is because reputation cannot be inherited; it is only some interest that can be earned from being associated with the deceased. It has been argued that “a right to sue in defamation for the reputation of deceased persons could easily be abused and might prevent free and open debate about historical events” (Article 19, 2000, p. 6).

Groups which are not legally recognized are said not to have any reputation. As such, it cannot be argued that the reputations of such groups have been defamed. However, if the group members can prove that their reputation has been defamed at person levels then they can process a lawsuit for defamation but only at individual levels (Singh, 2008).

Public bodies should not be allowed to bring up defamation cases. This is because public bodies serve the interest of the public and they should be exposed to criticism. This will uphold the spirit of democracy in running public bodies.

There is a raging debate on whether defamation should be treated as a criminal offense or a civil offense or both. Currently, many nations treat defamation as either a criminal offense or a civil offense. Article 19 (2000), argued that it would be good if defamation is only treated as a civil offense.

It further argues that criminal defamation laws must have a strict and thorough outline of proving that defamation was committed beyond any reasonable doubt (Article 19, 2000). This will include proving that the supposedly defamatory statements made are not true and that they were made with the intention of defaming. A suggestion is also made that public officials are not to initiate this process (Article 19, n.d.).

Defamation has been noted to be the issuance of statements which are not true and which are meant to harm the reputation of a person. Defamation laws are specifically meant to protect reputations. These laws should therefore not be extended to cover any other area apart from that of reputation protection.

When invoking a defamation law, it is mandatory that one ensures that his or her reputation has been harmed. The existence of a reputation needs to be shown such that its defamation can be ascertained. Groups which are not legally recognized and generally all public bodies are exempted from this protection.

Unregistered groups are not considered to have any reputation at all and as such they cannot invoke defamation actions. Though most nations treat defamation as either civil offense or criminal offense, there is a call for defamation laws to be amended into making defamation offenses only civil offenses.

Article 19. (2000). Defining defamation . Global Campaign for Free Expression . Web.

Article 19. Criminal defamation. Article 19 . Web.

Larson, A. (2003). Defamation, Libel and Slander Law. Expert Law . Web.

Singh, B. (2008). Criminal offence. The Star Online . Web.

The Canadian Bar Association. (2012). Defamation: Libel and Slander. The Canadian Bar Association . Web.

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Defamation is a statement that injures a third party's reputation. The tort of defamation includes both libel (written statements) and slander (spoken statements). State common law and statutory law governs defamation actions, and each state varies in their standards for defamation and potential damages . Defamation is a tricky area of law as the lines between stating an opinion versus a fact can be vague, and defamation tests the limits of the first amendment freedoms of speech and press. 

To prove prima facie defamation, a plaintiff must show four things: 1) a false statement purporting to be fact; 2) publication or communication of that statement to a third person; 3) fault amounting to at least negligence ; and 4) damages , or some harm caused to the reputation of the person or entity who is the subject of the statement.

State-Specific Elements

Different states vary in their anti-defamation statutes . As such, courts in different states will interpret defamation laws differently, and defamation statutes will vary somewhat from state to state. In Davis v. Boeheim, 110 A.D.3d 1431 (N.Y. 2014) , which is a New York state court case, the court held that in determining whether a defamation claim is sufficient, a court must look at whether the "contested statements are reasonably susceptible of a defamatory connotation." However, as the Davis court held, because the courts recognize the plaintiff's right to seek redress as well, many courts have declined from dismissing the case for failure to state a claim, as long as the pleading meets the "minimum standard necessary to resist dismissal of the complaint." Many states treat certain types of claims as defamatory outright if false such as accusing someone of committing a crime or accusing someone of a corrupt act. States also have very different treatment of damages for defamation with some mostly limiting awards to actual damages inflicted by the statements to others that allow criminal liability for some statements. For publishers, damages may be reduced in some states by publishing a redaction of the defamatory statements. 

Burden Of Proof To Show Fault

Most states assume that a speaker who defames another necessarily has the requisite guilty state of mind . In Levinsky's, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122 (1st Cir. 1997) , the court held that in Maine, all defamation claims need showing of fault, which requires the plaintiff to prove that the defendant was at least negligent .

Actual Malice Standard

In The New York Times Co. v. Sullivan, 376 U.S. 254 (1964) where a police chief brought a defamation claim regarding a newspaper, the Supreme Court held that for a public official to succeed on a defamation claim, the public official plaintiff must show that the false, defaming statements were said with "actual malice." The Sullivan court noted the threat relaxed defamatory statements could pose to first amendment freedom of speech, and given the especial importance of being able to question government officials, the court found the state’s libelous per se standard to not satisfy first amendment protections as it relates to public officials. The Sullivan court stated that "actual malice" means that the defendant said the defamatory statement "with knowledge that it was false or with reckless disregard of whether it was false or not." The Sullivan court also held that when the standard is actual malice, the plaintiff must prove actual malice by " clear and convincing " evidence, rather than the usual burden of proof in a civil case, which is the preponderance of the evidence standard. On this point, the precise language the Sullivan court uses is that the plaintiff must show "the convincing clarity which the constitutional standard demands."

Privileges and Defense

Complete defenses.

Truth is widely accepted as a complete defense to all defamation claims.

An absolute privilege is also a complete defense to a defamation claim. Among other examples, this includes statements made by witnesses during a judicial proceedings.

Qualified Privilege

In the defamation context, a qualified privilege permits someone to make a statement that would typically be considered defamatory, but because of particular circumstances, a particular statement made would not be considered to be defamatory. However, if the statement is made with actual malice, then the speaker will no longer be entitled to the qualified privilege.

Among other examples, this includes statements made during legislative proceedings.

For more on defamation, see this Florida State University Law Review article , this Syracuse Law Review article  and this Harvard Law Article . 

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An Introduction to Defamation Law

Event overview, what you'll learn.

• What is defamation?
• What are the countervailing values at stake in defamation cases?
• Who does the current doctrinal framework protect, and why?
• How is defamation law evolving?

Tyler Valeska is in his second year with the First Amendment Clinic. Prior to his appointment at Cornell, he clerked for Judge Aleta Trauger, Middle District of Tennessee. Before clerking, he worked as a litigation associate in the Washington, D.C. office of Gibson, Dunn & Crutcher LLP. Mr. Valeska is a graduate of Northwestern University School of Law, where he served as Executive Articles Editor of the Journal of Law & Social Policy, and the University of Alabama, where he was a University Fellow and a Blackburn Institute Fellow.

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Defamation is the act of making false statements about someone that damage their reputation. This can occur in both written form, known as libel, and spoken form, referred to as slander. Defamation is a significant concern in nonfiction writing, as it raises important ethical questions about truthfulness and the potential harm that can arise from misrepresenting individuals or situations.

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5 Must Know Facts For Your Next Test

• Defamation laws vary significantly by jurisdiction, which can affect how cases are pursued and adjudicated.
• Public figures have a higher burden of proof when claiming defamation; they must demonstrate actual malice or reckless disregard for the truth.
• In nonfiction writing, it is crucial to fact-check claims about individuals to avoid potential legal repercussions for defamation.
• Defamation can result in both civil and criminal liabilities, depending on the nature and intent of the false statements.
• Writers should be aware of the distinction between opinion and factual statements, as opinions are generally not considered defamatory.

Review Questions

• Defamation significantly impacts the ethical responsibilities of nonfiction writers because they must ensure that their work does not contain false statements that could harm someone's reputation. This involves thorough fact-checking and verifying sources to avoid misrepresentation. Writers need to balance the pursuit of truth and storytelling with the obligation to respect individuals' reputations and rights.
• Nonfiction writers should be mindful of the legal considerations surrounding defamation, such as understanding the differences between libel and slander, as well as the standards of proof required for public figures versus private individuals. They should always aim for accuracy in their reporting and consider including disclaimers when expressing opinions. Consulting legal experts when unsure about potential defamatory content is also a prudent step to mitigate risks.
• Truth plays a critical role in defamation claims; if a statement can be proven true, it is generally not considered defamatory, regardless of its impact on reputation. This highlights the importance of accuracy in nonfiction writing, where presenting factual information is essential not only for credibility but also for protecting against legal challenges. Nonfiction writers must strive for honesty in their narratives while understanding that even true statements can sometimes be damaging if taken out of context.

Related terms

libel : A type of defamation that occurs when false statements are made in a permanent medium, like written articles or online posts.

slander : A form of defamation that involves making false spoken statements that harm someone's reputation.

malice : In defamation cases, malice refers to the intention or desire to cause harm or damage to someone’s reputation, which can impact legal judgments.

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Defamation Essay Samples

Type of paper: Essay

Topic: Law , Meeting , Reputation , Democracy , People , Tort Law , Crime , Violence

Words: 2250

Published: 02/20/2023

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Introduction The law of deformation plays a critical role in society, as it helps in protecting the reputation of people in different communities and manages the concept of freedom to speech. The idea is regarded as intentional tort and through false statements and action (McKenzie, 2015), it causes harm in other individuals, and this can occur through liberal or slander. Some of the consequences incurred after defamation include hatred, being regarded as a disgrace in societies and avoidance of other significant issues. Pressing charges on account of defamation is possible, and there are specific requirements. The defamatory statement is the first consideration, which indicates the intent to harm that should be evaluated in a rational manner. However, once the declaration has been acknowledged, the person been attacked needs to be appreciated and attended using the above approach (MacCallum, 2015 p. 678).

The law of defamation can be classified into two based on the UK definition to be either Liberal or slander. The concept has two specific aims with the first one being to offer remedy over people's reputation from others whatsoever as one way of guaranteeing the privacy of the concerned individuals. The goal is met by preventing the publication of untruths, an aspect that can significantly damage personal lives (Low, 2013 p. 98). An objective of the above tort of defamation is to ensure that people have freedom of speech and fair representation in investigating persons involved in any malpractice whatsoever. The sole role of the defamation is to uphold the freedom of expression as well as protecting people's reputation in the public (Van Noorloos, 2014). Hence, defamation helps protect people from untrue imputation against another, which can ruin their reputation. Moreover, in the case of a defamation allegations, the said statements remain to be untrue till they are proved by the defendant, and this case can be addressed by the high court in any given state (Gidron, 2013). One is said to have committed defamation once he/she is involved in the publishing of a third person's words that contradicts the truth hence ruining the reputation of the others in the public image. However, specific details should be considered for one to validate the defamation process. The first element identified by the claimant is that the words used contradict the society expectation, an aspect that will make an individual to be hated, ridiculed or avoided by the general public (Tort Law, 2013 P. 854). For effective communication to be realized in any society, there is a need to adhere to the different regulations placed by the tort. While liberal refers to written published word that is exposed to the public, slander focuses on the spoken word. Both cases are a crime, although slander requires definite proof to indicate that damage has indeed been committed, and it, therefore, means a damage that can be evaluated on a monetary basis (Bryan, 2014 P. 20). The case that will be used for the study to indicate defamation in corporate organization concerns four individuals who are co-workers at a company and are willing to destroy another's reputation because of their hatred. Al, Bob, Carl and Dolly worked at an international organization where they served different roles all the same and on a particular day, all the employees of the organization were required to attend a mandatory meeting. Before the meeting, Al went to Dolly's office and threatened her not to leave her office for the meeting that day lest he will kill her and other close friends. However, immediately after the hash statement directed to Dolly, Al left for the meeting leaving Dolly in the office scared for her safety, an aspect that made her miss the mandatory meeting. On the next day, however, Bob, a colleague at work put some sleeping pills in Dolly's coffee, which went unnoticed. Dolly drank the coffee and fell into a deep sleep a few minutes later and was reprimanded for her misconduct by Carl, who was her supervisor then. Contrarily to the truth, when the human resource manager asked to know the problem with Dolly that made her sleep at work and miss the meeting, the response given by Carl was that she had a serious drinking problem, an aspect that made her not to perform well at her job. However, it is worth noting that Carl was indeed aware of the sufficient cause of the problem but decided to destroy the Dolly's reputation to the manager, an aspect that made Dolly lose her job. In response to the above case, we can assert that Dolly was assaulted by Al in various ways with the first attempt being the intentional harming of another person without consent. This statement can be justified by the mere fact that Al entered her colleague's office shortly before the meeting and threatened her not to leave for the adjourned meeting and furthermore, Al subjected Dolly to some serious threats, for example, losing her life. However, it can still be argued that Dolly had an opportunity to move from the room and attend the meeting after the departure of Al as he only intended to scare her so as to miss out from the meeting. The statement said to Dolly by her colleague subjected Dolly to reasonable apprehension, and this action can be validated in that she was indeed afraid for her safety. Another claim evident from this case is false imprisonment that Dolly was subjected to by her friend as there was intent from the case that made Dolly be afraid, therefore confining herself to her office as required. Al knew that by subjecting Dolly to the harsh statement of not leaving her room lest she met her death had a real impact in Dolly, although the move can be regarded to be intentional and voluntary. Moreover, Dolly was confined to her office by Al against her will as she was subjected to serious threats that would cost her life. In fact, it is the threat that made her afraid and succumbed to Al's wish to remain confined to her office so as to miss out from the meeting although Al can defend himself from the allegation by indicating that Dolly had the option to escape from her room once he was out. However, Dolly can still justify her action of not leaving the house because of the threat that Al and his friend will eventually harm her. The use of threats of harm is enough evidence to encourage an individual to confine within a particular area subject to the instilled fear on the plaintiff (Pierce, 2013). Therefore, it is evident that Dolly has a claim to sue Al for the false imprisonment, making her miss the meeting. It is evident that Bob had a negative impact on his colleague as he intentionally put the sleeping pills in her coffee. There is an element of an offensive contact to Dolly as indicated from the study, and this can be justified by the mere fact that Bob placed the pills in her coffee without her consent. Apparently, the coffee was closely connected to the plaintiff as something that will be drunk by the person and if interfered with will cause harm to Dolly. Although Bob did not get into contact with Dolly, her action to inject the pills into her coffee was enough to indicate his harm intentions to the plaintiff. Hence, it is evident that Bob will be held responsible for battery against the applicant as evidenced by the findings. Moreover, the defamatory statement offered concerned the plaintiff and for the above case, Carl's remark negatively impacted on Dolly's behavior of missing from the meeting and sleeping at her desk. To indicate the exposure of the message to a third person through publishing, it is important to appreciate that Carl made the remarks to the human resource manager who in this case will be regarded as the third party. Furthermore, the damage caused by the defamation is the fact that Dolly's professional career was brought to a halt and further spoilage of her reputation to the public. The false statement that Dolly had a drinking problem had a negative impact on her profession as it was misunderstood that she had a professional misconduct. Therefore, although Carl can defend himself from the case by indicating that the defamatory statement about Dolly was part of his responsibility being her supervisor, the defense can still be challenged. This is because the remarks made by Carl concerning Dolly was false and had the intention to spoil her reputation hence, adequate evidence that Carl can be held responsible for damages for defamation. The only remedy for the above case, therefore, is to ensure that the numerous victims indicated to have involved themselves in defamatory damages should be held responsible and set free Dolly as she a victim of circumstances (Davies & Lee, 2008). Another case to discuss is "Safeguarding Democracy" by the Human Rights Law Center, which is committed to ensuring that equity, freedom and dignity are achieved. Australia is a democratic country whose success lies in different facets although the same is faced with various issues such as the set policies, and practices that are aimed at eroding the different democratic rights of the citizens (Yang, 2014). The government has enforced some laws that significantly reduce the government transparency among other critical issues. The government has developed a lot of extreme power hence empowering the political elites and other stakeholders that limit the transparency in the government operations. The process has incapacitated the mandate of different environmental groups that are supposed to challenge the use of fossil fuel in the country by being subjected to some threats. Moreover, the various nongovernmental organizations mandated to protect the minorities are limited by the government to perform their different jurisdiction (Council, 2011). In fact, the country has a broad range of anti-protest laws that are focused on meeting the various priorities of the politics and other business stakeholders' needs. Furthermore, the different whistleblowers found to alert the public concerning the abuse of the human rights of the people face undesirable punishment including prosecution and jail. The media actions are limited by the different policies as there is no confidentiality, courts and other institution that protect upholding of the human rights regulations are also subjected to various punishments (Capie, 2015 p. 675; Poorman, 2013 p. 68). The government has the mandate of enforcing effective policy tools that will allow for freedom to speech, free flow of information, and a fair election that will allow for representation of the people. Protesting on the issues that affect the people will act like the only possible solution and an environment that allows for a civil society. Realizing the above objectives will guarantee the people from being subjected to human abuse and make the leaders represent the needs of the public and those of the minorities (Azriel & Mayo, 2014).

Defamation is a concept that is experienced in any society, especially when there are people with an ill motive to destroy the reputation of others, causing harm. For the case considered in the study, Dolly's reputation is impaired by fellow colleagues who hate her, an aspect that makes the human resource manager to see her as a person with professional misconduct and fires her from work. However, in reality, there are false allegations directed to Dolly by her colleagues with an intention to destroy her reputation at work.

Bibliography

Azriel, J, & Mayo, C (2014). 'In the Age of Social Media. Times V. Sullivan And Gertz V. Welch Decisions Still Important to Defamation Trials', Journal of Internet Law, 17(8) pp. 26-33 Bryan, V (2014) “Margery Kempe and the legal status of defamation”, Journal of Medieval Religious Cultures, 40(1), pp. 20–43. Capie, JM (2015).'Freedom of Unspoken Speech: Implied Defamation and Its Constitutional Limitations Supreme Court of New York Appellate Division, First Department', Touro Law Review, (31) p. 675 Council, A.P. (2011) Media release 22 Feb 2016 - Australian press council. Available at: http://www.presscouncil.org.au/media-release-22-feb-2016/ (Accessed: 2 March 2016). Davies, M.R. and Lee, B.A. (2008) ‘The legal implications of student use of social networking sites in the UK and US: Current concerns and lessons for the future’, Education and the Law, 20(3), pp. 259–288. Gidron, T. (2013) ‘Defamation law in turbulence: Does Israel need “Libel Reform”?’, Israel Law Review, 46(01), pp. 95–134 Low, KY 2014, 'UK defamation act (2013), Singapore Academy of Law Journal, 26, 1, p. 98, MacCallum, W (2015). 'Defamation actions and social media: Where are the risks?', Governance Directions, 67(11) pp. 677-679, McKenzie, K. (2015) ‘“The laws of his own Country”: Defamation, banishment and the problem of legal pluralism in the 1820s cape colony’, The Journal of Imperial and Commonwealth History, 43(5), pp. 787–806. Non-Competition Covenants/Defamation/Equitable Remedies' 2016, Business Torts Reporter, 28(4) pp. 90-93,  Pierce, A. J. (2013). New York's Appellate Courts Wrestle with Significant Issues in Internet Defamation Cases. Journal of Internet Law, 17(4), 1-24. Poorman, MT (2013). 'Get with the Times: Why Defamation Law Must be Reformed in Order to Protect Athletes and Celebrities from Media Attacks', Texas Review Of Entertainment & Sports Law, 15(1) pp. 67-85 Tort Law - Defamation - New York Appellate Division Holds that the Imputation of Homosexuality is no Longer Defamation Per Se. - Yonaty v. Mincolla, 945 N.Y.S.2d 774 (App. Div. 2012)' 2013, Harvard Law Review, 126(3) pp. 852-859 Van Noorloos, M (2014). 'Criminalising Defamation of Religion and Belief', European Journal of Crime, Criminal Law & Criminal Justice, 22(4) pp. 351-375 Yang, L.K. (2014). 'UK Defamation Act 2013: Key Changes [article]', Singapore Academy of Law Journal, (1) p. 98

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Macdonald, Sarah --- "Defamation And Social Media In Australia" [2021] UNSWLawJlStuS 19; (2021) UNSWLJ Student Series No 21-19

DEFAMATION AND SOCIAL MEDIA IN AUSTRALIA

SARAH MACDONALD

I INTRODUCTION

This essay considers how Australian defamation law has been deployed thus far in the context of social media. A growing body of caselaw suggests a significant gap between what the law perceives as reputation and publication, and how these concepts exist online. The rapid advent of social media has fundamentally changed how humans interact and relate to one another. Today, billions of us communicate with other users across key networking sites such as Facebook, Twitter and Instagram. The new affordances of these platforms have enabled humans to ‘share’ their thoughts louder, further and more widely than ever before. This has had far-reaching consequences, not least in defamation proceedings.

In the first section, the essay provides a necessary overview of current defamation laws in Australia. Notwithstanding highly anticipated reforms which are due to commence in New South Wales from the middle of 2021, defamation laws reflect a pre-social media understanding of publication and reputation. As the following sections will discuss, this legal framework does not always apply readily to disputes involving online content.

In the second section, the essay moves to an examination of how current defamation laws interact with new social media-driven modalities of communication. Ways in which publication via social media differs from traditional publication include the potential for content to ‘go viral’ unexpectedly and the ease of publishing defamatory commentary. Social media has enabled us all to become publishers, regardless of whether we have the traditional benefits of editorial checks and balances and legal counsel.

In the third section, the essay examines recent examples of how the Courts have applied the law in defamation cases involving social media. One highly publicised case is Voller , where news publishers were considered liable for comments made by third parties on articles shared as Facebook posts. Christian Porter’s upcoming proceedings against the ABC, where the former Attorney General intends to use contextual social media activity to show that an article which did not name him effectively identified him, will also consider important questions about online liability.

Finally, the fourth section of the essay will discuss how reform could help to adapt this area of law to suit the modern context. As well as discussing measures which already form part of the upcoming reforms, such as the single publication rule and serious harm threshold, this section will also suggest novel measures which could reduce the number of trivial defamation claims being brought in relation to social media and help provide just, quick and cheap solutions to complaining parties. For example, an alternate dispute resolution process for minor claims could be introduced. More generally, commentators have also suggested that reversal of the presumption of damage would benefit defamation law.

Increasingly, news publishers rely on social media to disseminate content to their audience. Similarly, non-professional publishers are increasingly turning to social media sites to share defamatory comments about other individuals, businesses and groups. The caselaw of defamation proceedings relating to social media is therefore likely to grow. It is important to evaluate how Australian defamation law has grappled with social media so far and what the Courts’ decisions may mean for publishers and plaintiffs in future. In order to provide context for this discussion, the essay first turns to the current state of defamation law in Australia.

II AUSTRALIAN DEFAMATION LAW TODAY

Australian defamation laws were last updated to form a uniform regime in 2005. [1] To place this date in context, Facebook launched its News Feed in 2006 and surpassed one billion users globally in 2012, seven years after the national uniform defamation laws were introduced. [2] Whilst the introduction of uniform defamation laws was an improvement on the eight distinct bodies of law previously enacted across the nation, [3] Rolph writes that introducing uniform laws meant merely that ‘discombobulation need not be limited to one particular jurisdiction, but might apply to Australian defamation law more generally’. [4] This tone is reflective of widely held criticisms within the legal community concerning the distinctly arcane nature of defamation law. Legal commentators have critiqued defamation law for its complexity, technicality and artificiality. [5] The reforms due to commence from July 2021 in New South Wales, Victoria and South Australia will hopefully go some way toward remedying these problems. However, some commentators are concerned that the reforms do not sufficiently address the issues facing individuals involved in smaller defamation proceedings. [6] This section will outline defamation law as it exists in Australia today, including key criticisms levelled against these laws.

Australian defamation law is an obscure area of law. [7] It derives from a combination of complex, ancient English laws and newer laws developed independently across the Australian colonies. [8] Prior to 2005, the Australian states and territories had never succeeded in achieving a national body of defamation law. This was partly due to the fact that the Commonwealth Parliament did not have constitutional power to legislate with respect to this area of law. [9] However, the task of reforming defamation laws was also hindered by a lack of political impetus on the part of the states and territories. [10]

Accordingly, the 2005 reforms were a significant step in the development of Australian defamation laws. Prior to this point, legislation across the nation comprised eight different bodies of law. In a nation as large as Australia, this pluralistic system resulted in unnecessarily complex and costly legal proceedings. [11] The introduction of uniform laws simplified the law and helped to prevent the practice of ‘forum shopping’. [12] However, Rolph argues that the reforms prioritised the goal of uniformity over substantive change. [13] Despite successfully introducing substantial uniformity, defamation laws remained reminiscent of their historical origins. [14] This was partly due to the haste with which the uniform laws were agreed upon and passed, in order to prevent the then Attorney General from passing a less desirable national ‘defamation code’. [15] Further, the reform process relied heavily on the Australian Law Reform Commission’s report ‘ Unfair Publication: Defamation and Privacy ’, which was released in 1979. [16] Unsurprisingly, important developments in defamation law had occurred in the 26 years between the release of the report and the introduction of the reforms. The rapid expansion of the Internet and social media in the years since 2005 has heightened the need for modernisation.

Because the 2005 reforms were the result of collaboration between the Australian states and territories, they have proved difficult to change. [17] However, further national reforms are now set to commence in some states in the middle of 2021. [18] Whilst the staggered uptake of the reforms may temporarily undo the uniformity of Australian defamation law, [19] they may help to address some of the criticisms described below.

One key criticism of defamation law is that it is unduly technical. This is due to the prolixity of pleadings, which has led defamation pleadings to be described as ‘trial by interlocutory ordeal’. [20] Protracted pleadings can delay trials, thereby reducing plaintiffs’ prospects of restoring their reputations in a timely manner and failing to protect defendants’ free speech. [21] Another criticism is that defamation can be characterised as a fundamentally artificial tort. [22] This criticism extends beyond the technicality of pleadings. For example, the single meaning rule means that a single meaning must be ascribed to the published material. [23] Whilst this may stem from the practical requirements of defamation proceedings, it nevertheless perpetuates the fiction that everyone who reads a text will grasp the same meaning. This proposition becomes even more untenable in relation to texts published on social media, where ‘context collapse’ occurs. [24] Context collapse is the convergence of various different social worlds on a single platform, which may lead different users to assign different meanings to the same material. Another aspect of defamation law’s artificiality is the emphasis placed upon the objective potential for reputational harm, rather than the actual harm sustained by the plaintiff. [25] This results in an artificial relationship between remedies and actual harm in defamation proceedings. Finally, a third criticism is that defamation law is extremely complex. As described above, this is largely due to defamation law’s historical origins. [26] Over time, defamation laws have accumulated subject to little revision or rationalisation. [27] The resulting body of law may be challenging for plaintiffs to access and understand. Similarly, defendants may struggle to successfully defend claims against them.

These criticisms are important to note in relation to the current state of defamation law in Australia. In order to understand the fresh challenges that social media poses to defamation law, it is important to first understand the roots and pre-existing weaknesses of this area of law. Australian defamation laws are the result of a long and complex history, merging ancient English laws with newer laws from the Australian colonies. This history has ultimately bestowed upon Australia a highly technical, artificial and complex body of law. Since defamation laws were last reformed in 2005, the media landscapes they preside over have changed dramatically. Whilst the upcoming reforms may help these laws adapt to new modes of publication, distribution and communication online, this essay argues that defamation laws still require further recalibration. The following section will briefly outline the ubiquity of social media and discuss how defamation laws currently interact with new social media landscapes.

III DEFAMATION LAW, SOCIAL MEDIA AND ONLINE PUBLICATION

As the section above discusses, defamation laws were largely developed before the Internet facilitated major changes to publication and, more generally, human communication. This section of the essay will discuss how these older laws have interacted with new social media landscapes thus far. For many businesses and public figures, maintaining a social media presence is now a key means of advertising, communicating with target audiences and building brand value. The ubiquity of social media has pushed the issue of defamation law to the fore in recent years, with the number of cases concerning defamation via social media continuing to grow. [28] Given that this type of defamation proceedings is becoming increasingly prevalent, it is important to consider how the issues that arise in these proceedings differ from defamation cases concerning ‘traditional’ modes of publication. First, this section will discuss social media’s novel capacity for virality, which allows publications to spread at unprecedented speeds via ‘the grapevine effect’. [29] Second, it will discuss the impact of anonymous and non-professional publishers on social media. [30] Grievances which might once have been aired across a backyard fence now occur on social media, only to become the subject of subsequent defamation proceedings.

Before discussing how defamation laws apply to social media, it is important to begin with a brief overview of social media itself. Social media platforms such as Facebook and Twitter are ‘Web 2.0’ platforms, a term which distinguishes platforms relying on user-generated content from their earlier ‘Web 1.0’ counterparts, which functioned more like online bulletin boards and publications. [31] The ability for users to collaborate and publish material online has led to defamation proceedings arising from circumstances which did not exist pre-social media. User-generated content on social media can be published easily, spreads widely and often blurs the demarcation between public and private spheres. [32] Whilst many social media defamation proceedings relate to major platforms such as Facebook and Twitter, less well known consumer review websites have also featured in cases. [33] In 2017, the Australian Bureau of Statistics reported that over half of Australian businesses had a web presence, [34] and an estimated 80% of Australians use social media. [35] These figures indicate just how far reaching defamatory claims made on social media can be.

Defamation proceedings involving social media differ from those involving traditional media in several ways. One such difference is the potential for defamatory material to ‘go viral’ on social media, which results in the material spreading far beyond its initial audience via the ‘grapevine effect’. [36] The grapevine effect refers to how far defamatory remarks travel once released into the world. This effect was described in Ley v Hamilton : ‘it is impossible to track the scandal, to know what quarters the poison may reach’. [37] Whilst the grapevine effect is by no means new, it has been amplified dramatically by social media. The Courts have recognised that defamatory materials on social media ‘have the capacity to ‘go viral’ more widely and more quickly than ever before’. [38] The nature of social media connections also means that the grapevine effect may be more harmful to plaintiffs on platforms such as Facebook than it would otherwise be. [39] In Dabrowski v Greeuw , the Court noted that the people exposed to defamatory material via the grapevine effect were mostly the plaintiff’s Facebook ‘friends’, which included his acquaintances, family and friends. [40] The reputational harm and distress caused to a plaintiff may be worsened by knowledge that defamatory accusations have been shared to people with whom the plaintiff is close. This is an important factor to consider in the assessment of damages for social media defamation proceedings. [41] Conversely, however, Courts must consider how reputable social media posts are and how seriously they may be taken by those who view them. Whether social media posts should be given the same weight as professional news publications is an important question.

Another new factor in social media defamation proceedings is the ease with which anyone can publish anything online, anonymously and instantly. This has multiple implications at both the pre-trial and trial stages. Pre-trial, social media has the potential to preserve in time what might otherwise have been throwaway comments. Before social media, arguments between acquaintances which degenerated into defamatory accusations may have occurred in person and been quickly forgotten. Following his $340,000 victory after being called a thief on Facebook, the plaintiff in Polias v Ryall said that, ‘[p]eople should be very careful about what they write on social media because it spreads like wildfire and ... it stays on Facebook for a long time’. [42] Further, the online environment may increase the likelihood of people making defamatory accusations in the first place. The affordances of platforms such as Facebook and Twitter create an ‘online disinhibition effect’, which means that individuals communicate differently online compared to how they would in person. [43] Factors that contribute to this effect include anonymity, invisibility and asynchronicity: users do not have to expose their real identities, do not have to be seen or see the reactions of other users and do not communicate with others in real time. [44] Of these pre-trial factors, the ease of maintaining anonymity has particularly challenging implications once the defamation trial commences. There have been several instances of plaintiffs attempting, with varying degrees of success, to uncover who is behind anonymous defamatory reviews posted online. [45] If plaintiffs are unable to unmask their defamers, they are unlikely to find recourse in the Courts.

Social media is now a pervasive means of communicating, sharing information and brand building for Australian individuals and businesses. Online defamation differs from offline defamation as a result of several factors. People are more likely to act with less inhibition and may say things on social media that they would not say in ‘real life’. Unlike real life, comments made on social media are recorded in perpetuity. Finally, these comments have the potential to go viral and spread far beyond their initial audience via the grapevine effect. Together, these factors all contribute to more numerous and severe defamation matters finding their way to the Courts. It is important to review how these issues have been approached so far in the growing body of social media defamation caselaw. The following section of the essay will summarise the recent decisions of relevant defamation cases relating to social media.

IV KEY CASES

So far, the essay has discussed the broader context of defamation law as it currently exists and how defamation that occurs on social media platforms differs from more traditional types of defamation. The essay will now consider the actual outcomes of recent cases relating to these issues. Despite the relatively short period of time in which social media use has been prolific, there is already a considerable body of defamation caselaw relating to it. This section will summarise some of the key cases relating to social media defamation in Australia and discuss the legal principles they are beginning to establish. The cases illustrate where reform may be needed to help defamation laws resolve this kind of dispute more quickly and justly.

One of the earliest substantial social media defamation cases was Mickle v Farley , decided in 2013. [46] In the case, a teacher at a regional New South Wales high school was awarded compensatory and aggravated damages in the sum of $105,000 with costs. [47] The defendant, aged 20 at the time of the case, was a former student at the school and had never been taught by the plaintiff. Nevertheless, he posted a number of defamatory comments about her on his Facebook and Twitter pages. At the time, the defendant had 63 followers on Twitter. [48] Upon learning of the comments, the plaintiff left on sick leave and had only returned to work on a limited basis by the time of the proceedings. [49] In making his award of damages, Elkaim DCJ stated that the ‘evil’ of defamatory communication via social media ‘lies in the grapevine effect’. [50] The case has been upheld as a warning to careless social media users. [51] However, it also represents an alarming disconnect between how defamation laws and social media users view content on social media. Many social media users view their profiles as informal, personal spaces. The law disagrees. The defendant in this case was certainly not the first high school leaver to express strong feelings about a former teacher. However, he may have been the first to face such a costly penalty for doing so.

A year after Mickle v Farley, Bowden DCJ also cited the grapevine effect in Dabrowski v Greeuw . [52] In this case, the plaintiff brought a claim against his former partner over an allegedly defamatory Facebook post in which she accused him of domestic violence. The defendant was unable to adduce independent evidence in support of the claim and so was ordered to pay her former partner $12,500. This case seemingly grappled with its social media context with slightly more nuance than Mickle v Farley : Bowden DCJ said that ‘doubts about the character of Mr Dabrowski would still exist but they would not be as grave as if the defamatory post had been published in a reputable newspaper. However, the grapevine effect could mean that the defamatory imputations are repeated without revealing that the source was a Facebook post made by an estranged wife’. [53] The former point recognises the informal, fickle nature of social media publications. The latter point, however, fails to adequately acknowledge the extent to which comments on social media are connected to their authors’ personal profiles. As the parties had been married for eighteen years and shared children, their connection on social media would likely be known to their respective Facebook friends and perceptible to viewers on the periphery of their shared network. It seems probable that the dispute in question could have been better resolved without turning to formal, expensive and time-consuming legal proceedings.

In a controversial 2018 High Court decision, Trkulja v Google LLC raised questions about whether internet service and search engine providers can be held liable for the content they ‘publish’. [54] The plaintiff, an innocent man who was injured in underworld crossfire, was shocked to discover that his picture appeared in Google search results alongside the criminals responsible for his injury. He claimed that the search results indicated that he was connected to prominent Melbourne gangsters, thereby defaming him. The dispute eventually reached the High Court, where it was held that an ordinary reasonable person could infer that Mr Trkulja was connected to the criminal underworld and that it was ‘strongly arguable’ that Google published the material. [55] As the appeal was from a summary dismissal, The High Court’s decision was limited to the question of whether the Court of Appeal had erred in concluding that the matters were incapable of conveying the defamatory imputations. [56] However, it nevertheless leaves questions open in relation to intermediary liability. Whilst there is emerging case law in this area, the High Court has yet to set out a general approach. If Google is held liable, it could open the doors for countless others hoping to sue for defamation. How carefully Google should, or even can, monitor its search results has real implications for free speech. This is especially true where allegedly defamatory search results or suggested search terms relate to reporting of matters in the public interest, such as violent criminal activities.

Last year, the New South Wales Court of Appeal considered a similarly controversial decision in Voller . [57] In the primary judgment, Rothman J classed news outlets as primary publishers of defamatory comments by third parties on their Facebook pages. [58] As primary publishers, the defence of innocent dissemination would not have been available to the three news outlets named in the case. [59] Rothman J stated that each defendant had ‘provided the forum ... and encouraged, for its own commercial purposes, the publication of comments’. [60] Without question, users’ engagement with social media content is what allows the content to spread and reach new readers. With the traditional media industry in crisis, this digital engagement is necessary for media companies’ survival. However, commercial purposes may exist ancillary to news dissemination in the public interest. The primary decision meant that news outlets would be liable as soon as third parties posted defamatory comments under their article posts. This has extremely troubling implications for free speech, especially given that public Facebook pages cannot disable comments on their posts. Accordingly, under the primary judgment, public interest journalism would have faced constant exposure to lawsuits. The Court of Appeal held that the defendants were publishers, but went no further than that, meaning that the case will now need to be determined in the Supreme Court. In a joint statement, the defendants said that this result demonstrated Australian defamation law was ‘completely out of step with the realities of publishing in the digital age’. [61] The final outcome of this case will have major implications for any person or organisation with a public Facebook page.

Finally, the upcoming defamation proceedings between former Attorney General Christian Porter and ABC journalist Louise Milligan together with the ABC also seem likely to raise novel questions about defamation via social media. Mr Porter, who has previously said that the uneven playing field between digital platforms and traditional media in defamation law ‘is something that needs to be dealt with as urgently as possible as a matter of reform’, [62] plans to use existing defamation laws to claim that he was indirectly identified in an article that did not name him. In his statement of claim, Mr Porter’s lawyers claim that this identification was evidenced through his name trending on Twitter and comments by third parties on the article shortly after its publication. [63] In response to the primary judgment in Voller in 2019, Mr Porter said that newspapers being held liable for comments by third parties on their Facebook pages was ‘clearly something that needs to be dealt with’. [64] If Porter is successful, the case has the potential to further chill freedom of speech in public interest journalism, both via self-censorship at the prepublication stage and post-publication legal repercussions. [65] Mr Porter’s claim argues that the article’s references to a ‘senior minister’, combined with the timeline of the events, allowed members of the public to deduce his identity. However, the level of seniority of a member of government who has been accused of rape is clearly a matter of public interest. Although omitting this detail may have afforded the ABC stronger legal protection, doing so would have been a blow to public interest journalism.

The cases above illustrate how defamation laws have been applied in social media matters relating to both personal disputes and professional journalism. The first two cases related to personal disputes aired via social media. In both cases, a large sum of damages was awarded for material shared on individuals’ social media profiles within their personal networks. As the number of social media defamation cases grows, these cases have the potential to strain the justice system. Resolution via the Courts may also serve to exacerbate disputes between parties, prolong stressful situations and cause serious financial hardship to unsuccessful parties. The last three cases related to online liability and public interest journalism. These cases have potentially far-reaching consequences for search engines, news outlets, journalists and public pages on social media. The outcomes suggest that judges in Australia will interpret defamation laws strictly and enforce problematic expectations of what responsible journalism entails. [66] The following section of the essay will discuss how upcoming defamation reforms may help to address these issues and propose new avenues of reform.

V UPCOMING AND POTENTIAL REFORMS

The history of defamation law and the outcomes of recent cases relating to social media suggest the need for reform. Currently, a first wave of defamation law reforms is set to commence on July 1 in three states, with a second wave under discussion. This section will discuss these reforms and propose several possible areas of additional reform in relation to two key issues. The first issue is the resolution of minor, ‘everyday’ defamation disputes. Reform in this area could encourage alternate methods of dispute resolution, such as mediation. Alternative dispute resolution could offer parties a faster, cheaper and more restorative process. This issue may also be addressed by the new serious harm threshold, which has been proposed as a way to prevent trivial claims from reaching Court. The second issue is the protection of public interest journalism and free speech. The upcoming reforms may help to correct the balance between vindication of reputation and free speech by introducing a new public interest defence, introducing a single publication rule and clarifying the cap on damages. Another way to address this issue could be to reverse the presumption of falsity in defamation proceedings.

Mickle v Farley and Dabrowski v Greeuw are both examples of personal disputes arising from vulnerable individuals making harmful comments publicly on their Facebook pages. Mr Farley was a regional high school leaver whose father had recently lost employment at the school due to his poor health. Ms Greeuw was in the process of leaving a long-term marriage in which she allegedly suffered domestic violence. Whilst these circumstances do not justify the defendants’ actions, they suggest that the combative environment of a courtroom may not have provided the best means of resolving the disputes. According to Richard Leder OAM, who represented Rebel Wilson in her recent defamation proceedings, ‘most people who are defamed are not in it for the money. Instead, they’re after a correction and an apology’. [67] Providing defamed parties with a simpler way to obtain an apology, removal of the offending material and a correction could help to reduce the burden faced by the Courts and save parties time and money. In the lead up to the 2005 reforms, the federal and state Attorneys General considered introducing alternative remedies for defamation. [68] However, this did not eventuate. As discussed above, the social media environment both enables individuals to make defamatory comments and preserves the evidence when they do. Defamation law holds these individuals to the same standard as professional news outlets, despite the fact that individuals do not have the same editorial checks, legal advice and journalistic training. The result is an increasing number of minor claims arising in circumstances which did not exist previously. Clearly, many individuals view social media as an informal space. Introducing a less formal dispute resolution process could help to close the gap between what individuals expect when they post to social media and what the law decrees.

The new serious harm threshold may help to address the issue of minor personal claims. [69] Under the reform, only cases which meet the threshold may proceed to Court. The presiding judicial officer may determine whether the serious harm element is established at any time prior to trial. If they do not find that the element has been established, they may dismiss the proceedings. [70] How the Courts will characterise social media publications such as ‘tweets’, ‘statuses’, ‘stories’, comments and posts remains to be seen. However, it seems plausible that social media publications distributed to a limited number of people will not always meet the required threshold. One criticism of the reform is that determining whether a defamatory publication caused serious harm necessitates a level of consideration akin to a trial. [71] As such, it may make defamation trials longer and more expensive. Further, the serious harm element will replace the defence of triviality. How the reform will affect defendants’ ability to defend themselves in this respect if the element is successfully made out pre-trial is not yet clear. Despite these questions, the reform will hopefully help to keep trivial disputes out of the Courts and prevent unharmed plaintiffs from seeking damages.

Turning to the protection of public interest journalism and free speech, an important upcoming reform is the introduction of a public interest defence. [72] Prior to this defence, no defence has explicitly protected public interest journalism. [73] The defence will extend the current qualified privilege defence, which has so far proved mostly unsuccessful, and is broadly modelled on the United Kingdom’s public interest defence. [74] Unlike the United Kingdom provision, which includes some additional protections for public interest publishers, the new Australian defence contains a list of factors derived from the qualified privilege defence. This departure from the United Kingdom provision means that past British cases cannot be used to predict how the defence will operate here in Australia. The Courts may interpret the new defence as narrowly as the qualified privilege defence has been historically. Whilst some commentators suggest that the lack of successful qualified privilege defences is due to ‘bad journalism’ and the ease with which a prospective plaintiff can determine whether the defence will succeed, this view underestimates the complexities of being a ‘responsible’ journalist. [75] Had this new defence commenced prior to Mr Porter’s proceedings, it may have helped the ABC defend Mr Porter’s claims.

Another upcoming reform which may help protect journalists is the single publication rule. [76] Currently, the law recognises the multiple publication rule. [77] Under this rule, a new cause of action arises every time someone accesses material online. [78] In effect, this leads to an ongoing statute of limitation. In turn, the prospect of litigation may lead news outlets to delete their archives. This is concerning, given that maintaining a public record of important news events is clearly in the public interest. The single publication rule mitigates this risk by establishing a limitation period which runs from the date of first publication, rather than its last download. Importantly, however, the single publication rule will not apply to a subsequent publication ‘if the manner of that publication is materially different’ from the first publication. [79] How the Courts interpret ‘materially different’ remains to be seen. Given that tweets linking to articles have been held to be separate publications from the articles themselves, [80] it seems plausible that social media posts shared after the initial statute of limitation commences could constitute subsequent publication.

The upcoming reforms also clarify that the cap on damages for non-economic loss cannot be set aside. In the past, this cap has sometimes been lifted when the Court has awarded aggravated damages. [81] This has left litigants uncertain and led to increasingly large awards of damages. Whilst the reforms reaffirm the cap on damages for non-economic loss, however, they do not place a limit on aggravated damages. This means that where the Court awards aggravated limits, the cap on damages for non-economic loss effectively ceases to have an impact.

Finally, a reform which has long been called for but is yet to be introduced is the reversal of the presumption of damage in defamation law. [82] This presumption makes it easier to commence a case and disadvantages the plaintiff from the outset. It also artificially separates defamation law’s protection of reputation from the actual experience of reputational harm. [83] As a result, plaintiffs who suffered no real harm can succeed in Court and receive compensation. Reversing the presumption could help to ensure that only plaintiffs whose reputations are damaged have access to vindication.

Defamation laws have long been widely regarded as ripe for reform. The rapid advent of social media has left old laws struggling to adapt to new technology. Fortunately, upcoming reforms may address some of the issues that these laws face. A second wave of reforms, recently canvassed in a discussion paper, will focus specifically on the responsibilities of social media platforms and search engines. [84] Whilst the reforms announced so far promise some improvements for minor disputes and public interest news outlets, they do not promise substantial change to all key issues. For example, reforms which introduce alternative remedies for individuals, a robust public interest defence and a firm cap on damages have not yet been achieved. Accordingly, defamation laws will likely require further development before they apply fairly, consistently and proportionately to proceedings relating to defamation by social media.

VI CONCLUSION

This essay has discussed how Australian defamation laws have adapted so far to changing social media landscapes. As social media platforms become increasingly important to news outlets’ business models, more high-profile defamation cases are likely to arise from circumstances involving these platforms. How these cases are decided will have long-lasting impacts upon free speech and public interest journalism. So far, the outcomes of social media defamation cases indicate that defamation laws have not yet adapted to new types of publication.

Legal commentators have long critiqued defamation law for its complexity, technicality and artificiality. These criticisms make sense in light of defamation law’s rich history. However, they continue to affect the operation of the modern body of law. Whilst the upcoming reforms may help to address some of the criticisms, the fact remains that defamation law has not been substantially overhauled in close to two decades. Despite the logistical and political difficulties of achieving a suitable uniform regime across all states and territories, the Australian jurisdictions should aim to achieve this.

Technological changes since 2005 have dramatically changed the matters to which defamation laws apply. The majority of Australian businesses and individuals now have an active presence on social media. For news outlets, social media is an essential means of disseminating content and reaching new audiences. The affordances of social media have also created new ways for individuals to publish material, interact publicly with news reporting and spread their views widely. The caselaw so far suggests that these affordances have yet to be reconciled with how the law has traditionally viewed defamatory publications. When aired on social media, personal grievances can circulate via the ‘grapevine’ and lead to substantial awards of damages. Such grievances are certainly not new, but their publication is. Social media also poses new risks to journalists and news outlets, who face uncertainty about damages, liability for third parties’ comments and unclear statutes of limitations. At a time when news outlets are already struggling to remain financially viable, these risks threaten public interest reporting and free speech. News outlets may choose to self-censor before publication or face costly litigation if they do not do so.

Some of the upcoming reforms will likely help to address these problems. For example, the introduction of the single publication rule and the serious harm threshold may help both professional news outlets and individuals avoid costly defamation litigation. However, the reforms fall short in some areas and do not address some important areas relating to social media. Hopefully, the second tranche of reforms will provide further clarity and protection for social media platforms and publishers.

Technology will continue to change, and social media is likely to become even more integral to personal communications and news dissemination. Part of the responsibility for improving how defamation laws apply to disputes lies with the Courts, who must interpret existing laws flexibly and reasonably in the context of new factual scenarios. However, the caselaw suggests that legislative reform is also needed to bring defamation laws into step with modern social media practices. Whether the upcoming reforms will achieve this remains to be seen.

VII BIBLIOGRAPHY

A Articles/Books/Reports

Bristow, Penelope, ‘#Trending: The Rise of Social Media and the Challenges for Australia’s Defamation Law’ (2018) 37(2) Communications Law Bulletin 19

Douglas, Michael, ‘‘Their Evil Lies in the Grapevine Effect’: Assessment of Damages in Defamation by Social Media’ (2015) 20(4) Media and Arts Law Review 367

Gray, Anthony, ‘Three suggested amendments to Australia’s defamation laws’ (2020) 45(2) Alternative Law Journal 94

Groshek, Jacob, and Cutino, Chelsea, ‘Meaner on Mobile: Incivility and Impoliteness in Communicating Contentious Politics on Sociotechnical Networks’ (2016) Social Media + Society 1

Ireland, Jennifer, ‘Defamation 2.0: Facebook and Twitter’ (2012) 17 Media and Arts Law Review 53

Lincoln, Siân, and Robards, Brady, ‘Being strategic and taking control: Bedrooms, social network sites and the narratives of growing up’ (2016) 18(6) New Media & Society 927

McClintock, Bruce, ‘Defamation Reforms: Much Ado About Not Much’ (2020) 70 Law Society of NSW Journal 66

Nicholas Olson, ‘Googling defamation law’ (2018) 47 Law Society of NSW Journal 84

Rolph, David, ‘A critique of the national, uniform defamation laws’ (2008) 16 Torts Law Journal 207

Rolph, David, Defamation Law (LawBook Co, 2016)

Suler, John, ‘The online disinhibition effect’ (2004) 7 Cyberpsychology & Behavior 321

Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112

Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154

Cairns v Modi [2012] EWCA Civ 1382 ; [2013] 1 WLR 1015

Dabrowski v Greeuw [2014] WADC 175

Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575

Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102

Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652

Ley v Hamilton (1935) 153 LT 384

Mickle v Farley [2013] NSWDC 295

Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15

Trkulja v Google LLC (2018) 356 ALR 178

Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd

Voller v Australian News Channel Pty Ltd [2019] NSWSC 766

C Legislation

Defamation Amendment Act 2020 (NSW)

Defamation Act 2005 (NSW)

Australian Bureau of Statistics, Summary of IT Use and Innovation in Australian Business (Catalogue number 8166.0, 14 June 2018)

Castelan, Justin, ‘Facebook and Twitter damages music to teacher’s ears: Mickle v Farley [2013] NSWDC 295 ’, Defamation Watch (Blog Post, 16 February 2015) <https://defamationwatch.com.au/facebook-and-twitter-damages-music-to-teachers-ears-mickle-v-farley-2013-nswdc-295/>

Conifer, Dan, and Snape, Jack, ‘Social media slurs could put Facebook in the courts under defamation push’ ABC (online, 20 November 2019) <abc.net.au/news/2019-11-20/facebook-twitter-social-media-defamation/11721864>

Facebook, Our History, (webpage) <https://about.fb.com/company-info/>

Joyce, Daniel, ‘Christian Porter's defamation action threatens to further chill public interest journalism’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/commentisfree/2021/mar/16/christian-porters-defamation-action-threatens-to-further-chill-public-interest-journalism>

Karp, Paul, ‘Christian Porter v ABC: can the minister sue for defamation over article that didn't name him?’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/australia-news/2021/mar/16/christian-porter-v-abc-can-the-minister-sue-for-defamation-over-article-that-didnt-name-him>

Mark Shumsky, ‘Social media defamation: be cautious when posting or re-posting online comments, reviews and links’, Stacks Law Firm (Blog Post, 13 August 2020) <https://www.stacklaw.com.au/news/business-disputes/social-media-defamation-be-cautious-when-posting-or-re-posting-online-comments-reviews-and-links/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>

May, Catriona, ‘Defamation and social media: when old laws meet modern tech’ (2019) 22 MLS News < https://law.unimelb.edu.au/alumni/mls-news/issue-22-november-2019/defamation-and-social-media-when-old-laws-meet-modern-tech>

Mills, Tammy, ‘ Zarah Garde-Wilson loses bid to find who was behind bad Google reviews’, The Age (online, 18 March 2021) <https://www.theage.com.au/national/victoria/zarah-garde-wilson-loses-bid-to-find-who-was-behind-bad-google-reviews-20210318-p57byd.html>

Model Defamation Law Working Party, Review of Model Defamation Provisions – Stage 2 (Discussion paper, April 2021)

Pelly, Michael, ‘Media lose Facebook defamation case, mull appeal’ Australian Financial Review (online, 1 June 2020) <https://www.afr.com/companies/media-and-marketing/media-lose-facebook-defamation-case-mull-appeal-20200601-p54yar>

Statista, Active social media users as percentage of the total population in Australia from 2015 to 2021 (webpage, February 2021) <https://www.statista.com/statistics/680201/australia-social-media-penetration/#:~:text=There%20has%20been%20a%20continued,just%2058%20percent%20in%202015>

Todd, Robert, Perkins, Nick, Loxton, Imogen, and Talas, Ted, ‘In the Public Interest? Changes to the Uniform Defamation Law’, Ashurst (Blog Post, 16 September 2020) <https://www.ashurst.com/en/news-and-insights/legal-updates/in-the-public-interest-changes-to-the-uniform-defamation-law/>

Whitbourn, Michaela, ‘Uniformity at risk as defamation reforms set to start in three states on July 1’ Sydney Morning Herald (online, 1 April 2021) <https://www.smh.com.au/national/uniformity-at-risk-as-defamation-reforms-set-to-start-in-three-states-on-july-1-20210401-p57fu5.html>

[1] Defamation Act 2005 (NSW) (‘ Defamation Act ’).

[2] Facebook, Our History, (webpage) <https://about.fb.com/company-info/>.

[3] David Rolph, ‘A critique of the national, uniform defamation laws’ (2008) 16 Torts Law Journal 207 , 207.

[4] David Rolph, Defamation Law (LawBook Co, 2016), 1.

[6] Michaela Whitbourn, ‘Uniformity at risk as defamation reforms set to start in three states on July 1’ Sydney Morning Herald (online, 1 April 2021) <https://www.smh.com.au/national/uniformity-at-risk-as-defamation-reforms-set-to-start-in-three-states-on-july-1-20210401-p57fu5.html> (‘Uniformity at risk’).

[7] Rolph, Defamation Law (n 4), 1.

[8] Ibid 52.

[9] Ibid 54.

[10] Ibid 55.

[11] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 207.

[12] Ibid 208.

[13] Ibid 207.

[14] Rolph, Defamation Law (n 4), 4.

[15] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 208.

[16] Ibid 245.

[17] Catriona May, ‘Defamation and social media: when old laws meet modern tech’ (2019) 22 MLS News < https://law.unimelb.edu.au/alumni/mls-news/issue-22-november-2019/defamation-and-social-media-when-old-laws-meet-modern-tech> (‘Defamation and social media’).

[18] Defamation Amendment Act 2020 (NSW).

[19] Whitbourn, ‘Uniformity at risk’ (n 6).

[20] Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 , 193 [22] (Kirby J).

[21] Rolph, Defamation Law (n 4), 2.

[22] Ibid 3.

[24] Siân Lincoln and Brady Robards, ‘Being strategic and taking control: Bedrooms, social network sites and the narratives of growing up’ (2016) 18(6) New Media & Society 927, 928.

[25] Rolph, Defamation Law (n 4) 3.

[26] Ibid 4.

[27] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 247.

[28] Michael Douglas, ‘‘Their Evil Lies in the Grapevine Effect’: Assessment of Damages in Defamation by Social Media’ (2015) 20(4) Media and Arts Law Review 367 , 369.

[29] Penelope Bristow, ‘#Trending: The Rise of Social Media and the Challenges for Australia’s Defamation Law’ (2018) 37(2) Communications Law Bulletin 19 , 22.

[30] Whitbourn, ‘Uniformity at risk’ (n 6).

[31] Jennifer Ireland, ‘Defamation 2.0: Facebook and Twitter’ (2012) 17 Media and Arts Law Review 53 , 54.

[32] Stead v Fairfax Media Publications Pty Ltd [2021] FCA 15 , 72.

[33] See, eg, Asbog Veterinary Services Pty Ltd & Anor v Barlow [2020] QDC 112.

[34] Australian Bureau of Statistics, Summary of IT Use and Innovation in Australian Business (Catalogue number 8166.0, 14 June 2018).

[35] Statista, Active social media users as percentage of the total population in Australia from 2015 to 2021 (webpage, February 2021) <https://www.statista.com/statistics/680201/australia-social-media-penetration/#:~:text=There%20has%20been%20a%20continued,just%2058%20percent%20in%202015>.

[36] Mickle v Farley [2013] NSWDC 295 , [21].

[37] (1935) 153 LT 384 , 386.

[38] Cairns v Modi [2012] EWCA Civ 1382 ; [2013] 1 WLR 1015 , [27] (Neuberger LCJ).

[39] Douglas (n 28) 373.

[40] [2014] WADC 175.

[41] Douglas (n 28) 369.

[42] Philip Conneller, ‘Australian Poker Pro Nicholas Polias Gets ‘Thief’ Defamation Award’, Cards Chat (Blog Post, 3 December 2014) < http://www.cardschat.com/news/australian-poker-pro-nicholas-polias-gets-thief-defamation-award-8533#ixzz3O7NwCpHV > .

[43] John Suler, ‘The online disinhibition effect’ (2004) 7 Cyberpsychology & Behavior 321, 322.

[44] Jacob Groshek and Chelsea Cutino, ‘Meaner on Mobile: Incivility and Impoliteness in Communicating Contentious Politics on Sociotechnical Networks’ (2016) Social Media + Society 1, 3.

[45] Tammy Mills, ‘ Zarah Garde-Wilson loses bid to find who was behind bad Google reviews’, The Age (online, 18 March 2021) <https://www.theage.com.au/national/victoria/zarah-garde-wilson-loses-bid-to-find-who-was-behind-bad-google-reviews-20210318-p57byd.html>.

[46] (2013) 18 DCLR (NSW) 51 ; [2013] NSWDC ( ‘ Mickle v Farley ’ ).

[47] Ibid [22].

[48] Mark Shumsky, ‘Social media defamation: be cautious when posting or re-posting online comments, reviews and links’, Stacks Law Firm (Blog Post, 13 August 2020) <https://www.stacklaw.com.au/news/business-disputes/social-media-defamation-be-cautious-when-posting-or-re-posting-online-comments-reviews-and-links/?utm_source=Mondaq&utm_medium=syndication&utm_campaign=LinkedIn-integration>.

[49] Mickle v Farley (n 46) [12].

[50] Ibid [21].

[51] Justin Castelan, ‘Facebook and Twitter damages music to teacher’s ears: Mickle v Farley [2013] NSWDC 295 ’, Defamation Watch (Blog Post, 16 February 2015) <https://defamationwatch.com.au/facebook-and-twitter-damages-music-to-teachers-ears-mickle-v-farley-2013-nswdc-295/>.

[52] [2014] WADC 175 (‘ Dabrowski v Greeuw’ ).

[53] Ibid 267-8.

[54] Trkulja v Google LLC (2018) 356 ALR 178 .

[55] Ibid [61].

[56] Nicholas Olson, ‘Googling defamation law’ (2018) 47 Law Society of NSW Journal 84, 85.

[57] Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102.

[58] Voller v Nationwide News Pty Ltd; Voller v Fairfax Media Publications Pty Ltd; Voller v Australian News Channel Pty Ltd [2019] NSWSC 766 (‘ Voller ’).

[59] Defamation Act 2005 (NSW) s 32.

[60] Voller (n 58) [224].

[61] Michael Pelly, ‘Media lose Facebook defamation case, mull appeal’ Australian Financial Review (online, 1 June 2020) <https://www.afr.com/companies/media-and-marketing/media-lose-facebook-defamation-case-mull-appeal-20200601-p54yar>.

[62] Dan Conifer and Jack Snape, ‘Social media slurs could put Facebook in the courts under defamation push’ ABC (online, 20 November 2019) <abc.net.au/news/2019-11-20/facebook-twitter-social-media-defamation/11721864> (‘Social media slurs’).

[63] Paul Karp, ‘Christian Porter v ABC: can the minister sue for defamation over article that didn't name him?’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/australia-news/2021/mar/16/christian-porter-v-abc-can-the-minister-sue-for-defamation-over-article-that-didnt-name-him>.

[64] Conifer and Snape, ‘Social media slurs’ (n 62).

[65] Rolph, Defamation Law (n 4), 7.

[66] Daniel Joyce, ‘Christian Porter's defamation action threatens to further chill public interest journalism’ The Guardian (online, 16 March 2021) <https://www.theguardian.com/commentisfree/2021/mar/16/christian-porters-defamation-action-threatens-to-further-chill-public-interest-journalism>.

[67] May, ‘Defamation and social media’ (n 17).

[68] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 246.

[69] Defamation Amendment Act 2020 (NSW) s 10A.

[70] Defamation Amendment Act 2020 (NSW) s 10A(4).

[71] Bruce McClintock, ‘Defamation Reforms: Much Ado About Not Much’ (2020) 70 Law Society of NSW Journal 66, 66.

[72] Defamation Amendment Act 2020 (NSW) s 29A .

[73] Joyce (n 66).

[74] Robert Todd, Nick Perkins, Imogen Loxton and Ted Talas, ‘In the Public Interest? Changes to the Uniform Defamation Law’, Ashurst (Blog Post, 16 September 2020) <https://www.ashurst.com/en/news-and-insights/legal-updates/in-the-public-interest-changes-to-the-uniform-defamation-law/>.

[75] McClintock (n 71) 67.

[76] Defamation Amendment Act 2020 (NSW) s 14C.

[77] Dow Jones and Co Inc v Gutnick (2002) 210 CLR 575.

[78] Anthony Gray, ‘Three suggested amendments to Australia’s defamation laws’ (2020) 45(2) Alternative Law Journal 94 , 95.

[79] Defamation Amendment Act 2020 (NSW) s 14C(3).

[80] Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652.

[81] Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154.

[82] Rolph, ‘A critique of the national, uniform defamation laws’ (n 3), 214.

[83] David Rolph, Defamation Law (LawBook Co, 2016), 4.

[84] Model Defamation Law Working Party, Review of Model Defamation Provisions – Stage 2 (Discussion paper, April 2021).

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Defamation and Freedom of Speech

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The law of defamation contemplates the clash of two fundamental rights: the right to freedom of expression and the right to reputation. The rules of defamation law are designed to mediate between these two rights. The central proposition that this book makes is that defamation law needs to be reformed to balance the conflicting rights. This discussion flows from a theoretical analysis of the rights in issue; the value underlying the right to reputation that has most resonance is human dignity, while the value that is most apposite to freedom of expression in this context is the argument that free speech is integral to democracy. The argument from democracy emphasizes that speech on matters of public interest should receive greater protection than private speech. This book argues that fundamental rules of defamation law need to be reformed to take into account the dual importance of public interest speech on the one hand, and the right to human dignity on the other. In particular, the presumptions that defamatory allegations are false and have caused damage, the principle of strict liability to primary publishers and negligence liability to secondary publishers, and the availability of punitive damages, should not survive constitutional scrutiny. The quantum of damages and costs rules, and the remedies available in defamation cases, should also be reformed to reflect the importance of dignity to the claimant, and the free speech interest of the public in receiving accurate information on matters of public interest.

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What is Defamation

This article is written by Rishabh soni , 3rd-year law student Amity law school Delhi. He discusses the concept of defamation in detail.

Introduction

Defamation as the meaning of the word suggests  is an injury to the reputation of a person resulting from a statement which is false . A man’s reputation is treated as his property and if any person poses damage to property he is liable under the law, similarly, a person injuring the reputation of a person is also liable under the law. Defamation is defined in section 499 of Indian Penal Code 1860 and section 500 provides that a person committing an offense under this section is liable with simple imprisonment for a term of 2 years or fine or with both.

Essentials of Defamation

A. The statement must be defamatory

The very first essential of the offense of defamation is that the statement must be defamatory i.e. which tends to lower the reputation of the plaintiff. The test to check if a particular statement is defamatory or not will depend upon how the right thinking members of society are likely to take it. Further, a person cannot take a defense that the statement was not intended to be defamatory, although it caused a feeling of hatred, contempt or dislike.

In the Case of Ram Jethmalani v. Subramanian Swamy court held Dr. Swamy to be liable for defaming Mr. Jethmalani by saying that he received money from a banned organization to protect the then CM of Tamil Nadu in the case of the assassination of Rajiv Gandhi. In another recent case of Arun Jaitley v Arvind Kejriwal, the court held the statement said by Arvind Kejriwal and his 5 other leaders to be defamatory. However, the matter was finally disclosed after all the defendants apologized for their actions.

Illustration

A publishes an advertisement in a local newspaper stating false information that the company of B has committed fraud of Rs 20,00,000. Now, this statement will amount to defamation as this newspaper will be read by many readers and will surely injure the reputation of B’s company.

However, it is to be noted that mere hasty expression spoken in anger, or vulgar abuse to which no hearer would attribute any set purpose to injure the character would not amount to defaming a person.

If A an employer scolds his employee B for not coming on time in front of the whole staff, then B cannot take the plea that A has injured the reputation of B.

B. The statement must refer to the plaintiff

In an action for defamation, the plaintiff has to prove that the statement of which he Complains referred to him, it will be immaterial that the defendant did not intend to defame the plaintiff. If the person to whom the statement was published could reasonably infer that the statement referred to him, the defendant will then be liable       

Illustration- If A, a bank publishes a notice to all its branches to not give the l oan to any person from xyz as the people of xyz are more often repeated defaulters. Now due to this B, a resident of xyz has suffered a huge loss. Now B can hold A liable for defaming him although the bank did not directly focus on him.

In the case of T.V., Ramasubha Iyer v. A.M.A Mohindeen Court held the defendants  liable for publishing a statement without any intention to defame the defendants.  The statement mentioned that a particular person carrying business of Agarbathis to C eylon has been arrested for the offense of smuggling. The plaintiff was also one of the person carrying on a similar business, and as a result of this statement his reputation also severely damaged.

C. The statement must be published

Publication of defamatory statement to some person other than the person defamed is a most important aspect for making any person liable, and unless that is done, no action for defamation will lie.

However, if a third person wrongfully reads a letter meant for the plaintiff, then the defendant likely to be liable. But if the defamatory letter sent to the plaintiff is likely to be read by somebody else, there will be a valid publication.

In the case of Mahendra Ram v. Harnandan prasad the defendant was held liable for  sending a defamatory letter to plaintiff written in Urdu knowing that the plaintiff did not  knew Urdu and the letter will very likely be read over by another person.

Forms of Defamation

•   Slander – It is the publication of a defamatory statement in a transient form            For example- Defaming a person by way of words or gestures.
•   Libel – It is the representation made in some permanent form.

For example- Defaming a person through a representation made in some permanent  form like writing, printing etc.

English law on libel and slander

Under English criminal law, libel is treated as a crime but slander is not. Slander is only a civil wrong. This distinction between libel and slander is mainly on two reasons-

• Under Criminal law, only libel has been recognized as an offense. Slander is no offense.
• Under the law of torts, slander is actionable, except in few cases where special damage has to be proved. Libel is always actionable i.e. without any proof. However, slander is also actionable in the following 4 cases:
•  Imputation of a criminal offense to the plaintiff.
•  Imputation of an infectious disease to the plaintiff which has the effect of preventing others from associating with the plaintiff. Example A makes a statement in his office that his colleague is suffering from AIDS. He can here be liable for defaming his colleague.
• The imputation that a person is incompetent, dishonest or unfit in regard to the office, profession, trade or business carried on by him.
•  Imputation of unchastity or adultery to any woman or girl.  

Indian law on Libel and Slander

Unlike English law, Indian law does not make any distinction between libel and slander and both are treated as criminal offenses under section 499 IPC. In the case of Hirabai Jehangir v. Dinshawdulji the Bombay and Madras high court both held that no distinction needs to be made between treating libel and slander as criminal offenses.

A statement is prima facie defamatory when its natural and obvious meaning leads to that conclusion. Sometimes it may happen that the statement was prima facie innocent but because of some secondary meaning, it may be considered to be defamatory. For this secondary instance plaintiff must prove the secondary meaning i.e. innuendo which makes the statement defamatory.

Illustrations

Z makes a statement that X is an honest man and he never stole my watch. Now this statement is at first instance may be innocent, but it can be defamatory if the person to whom it was made, interprets from this that X is a dishonest man having stolen the watch.

Defamation of class of persons

When particular words spoken are referred to a group of individuals or a class of persons, then no single person of that group or class can sue unless he proves that the words could reasonably be considered to referring him.

Illustration- If a person wrote that all doctors were thieves, then no particular doctor could sue him unless there was something that pointed out that the person actually intended to defame him individually.

This situation will be different if the person wrote that all doctors of Ganga ram hospital are thieves and then doctors of Ganga ram hospital can sue him for defaming them.

Communication between husband and wife

In the eyes of law, both husband and wife are one person and the communication of a defamatory matter from the husband to the wife or vice versa is no publication and will not come within the purview of section 499 . Section 122 of the Indian Evidence Act 1872 deals with privileged communications between husband and wife and makes them out of the scope of section 499 except in suits between married persons, or in a proceeding in which one married person is prosecuted for any crime committed against the other.

In a leading case of T.J. Ponnen v. M.C Verghese the court held that the letter from husband to his wife containing defamatory matter concerning the father-in-law will not amount to defamation. It will very much be covered within the scope of privileged communications between husband and wife as laid in section 122 of the Indian Evidence Act 1872.

Defenses  defamation

The defenses to an action for defamation are

Justification of truth

Fair comment

In a civil action for defamation, the truth of the defamatory matter is a complete defense and the reason for this is that “ Law will not permit a man to recover damages for something being true about him “.

Under criminal law on the other hand merely proving that the statement was true is not a good defense and besides this, the defendant has to show that it was made for public good also.

If the defendant is not able to prove the truth of the facts, the defense cannot be availed. In the case of Radheyshyam Tiwari v. Eknath court held the defendants for publishing defamatory matter against the defendants. Later the defendants were not able to prove that the facts published by him were true and, therefore he was held liable.

Making a fair comment on matters public interest is a valid defense to an action for defamation. For this, the following must be proved

• It must be a comment i.e, an expression of opinion rather than an assertion of fact

For example, If X says that A has been guilty of breach of trust and therefore he is a dishonest man. Here the latter words are a comment on the former. But if A did not commit any breach of trust and X still says to him as a dishonest man. Then it will not be a comment and will amount to an assertion of fact.

• The comment must be fair

The comment should be fair i.e. should not be based upon untrue facts.

For example, X publishes serious allegations of bribery against Y in a newspaper. Later X is not able to prove the truthness of these allegations and therefore his comment will not amount to fair comment.

•  The matter commented upon must be of public interest-

The matter on which the defendant has commented must be of public interest. Matters like administration of government departments, courts, ministers, public meetings, textbooks, etc are considered to be matters of public interest.

As the word suggests itself i.e. giving special status. These special occasions when the law recognizes that the right of free speech outweighs the plaintiffs right to defamation and a defamatory statement made on such occasion is not actionable. Privileges are of two types.

1. Absolute privileges –  In matters of these complete immunity is given to person speaking and no action for defamation can lie against him. It includes 3 aspects

• Parliamentary proceedings – Article 105(2) of the Indian constitution gives immunity to parliamentarians to speak anything during the course of business of parliament and no action would lie against them.
• Judicial proceedings – This protection has been given to judges under judicial officers protection act of 1850 . It also extends to counsels, witnesses, and parties to a suit.
• Qualified privilege – This privilege is also available and under this, it is necessary that the statement must have been made without a malice i.e a wrongful intention.

For example, A, a shopkeeper, says to B, who manages his business, “ Sell nothing to Z unless he pays you ready money, as I am doubtful of his honesty. Now A will fall under this exception if he has made his imputation on Z in good faith for the protection of his own interest.

After analyzing all the key aspects of defamation as laid in section 499 IPC, we have found that the essence of defamation lies in the injury to the reputation of a person. And for this injury, he can very much sue the defendants. Defamation is of two types libel and slander. Both are considered as criminal offenses in India. There are certain exceptions to this known as privilege.

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• How to write an essay introduction | 4 steps & examples

How to Write an Essay Introduction | 4 Steps & Examples

Published on February 4, 2019 by Shona McCombes . Revised on July 23, 2023.

A good introduction paragraph is an essential part of any academic essay . It sets up your argument and tells the reader what to expect.

The main goals of an introduction are to:

• Catch your reader’s attention.
• Give background on your topic.
• Present your thesis statement —the central point of your essay.

This introduction example is taken from our interactive essay example on the history of Braille.

The invention of Braille was a major turning point in the history of disability. The writing system of raised dots used by visually impaired people was developed by Louis Braille in nineteenth-century France. In a society that did not value disabled people in general, blindness was particularly stigmatized, and lack of access to reading and writing was a significant barrier to social participation. The idea of tactile reading was not entirely new, but existing methods based on sighted systems were difficult to learn and use. As the first writing system designed for blind people’s needs, Braille was a groundbreaking new accessibility tool. It not only provided practical benefits, but also helped change the cultural status of blindness. This essay begins by discussing the situation of blind people in nineteenth-century Europe. It then describes the invention of Braille and the gradual process of its acceptance within blind education. Subsequently, it explores the wide-ranging effects of this invention on blind people’s social and cultural lives.

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Table of contents

Step 1: hook your reader, step 2: give background information, step 3: present your thesis statement, step 4: map your essay’s structure, step 5: check and revise, more examples of essay introductions, other interesting articles, frequently asked questions about the essay introduction.

Your first sentence sets the tone for the whole essay, so spend some time on writing an effective hook.

Avoid long, dense sentences—start with something clear, concise and catchy that will spark your reader’s curiosity.

The hook should lead the reader into your essay, giving a sense of the topic you’re writing about and why it’s interesting. Avoid overly broad claims or plain statements of fact.

Examples: Writing a good hook

Take a look at these examples of weak hooks and learn how to improve them.

• Braille was an extremely important invention.
• The invention of Braille was a major turning point in the history of disability.

The first sentence is a dry fact; the second sentence is more interesting, making a bold claim about exactly  why the topic is important.

• The internet is defined as “a global computer network providing a variety of information and communication facilities.”
• The spread of the internet has had a world-changing effect, not least on the world of education.

Avoid using a dictionary definition as your hook, especially if it’s an obvious term that everyone knows. The improved example here is still broad, but it gives us a much clearer sense of what the essay will be about.

• Mary Shelley’s  Frankenstein is a famous book from the nineteenth century.
• Mary Shelley’s Frankenstein is often read as a crude cautionary tale about the dangers of scientific advancement.

Instead of just stating a fact that the reader already knows, the improved hook here tells us about the mainstream interpretation of the book, implying that this essay will offer a different interpretation.

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Next, give your reader the context they need to understand your topic and argument. Depending on the subject of your essay, this might include:

• Historical, geographical, or social context
• An outline of the debate you’re addressing
• A summary of relevant theories or research about the topic
• Definitions of key terms

The information here should be broad but clearly focused and relevant to your argument. Don’t give too much detail—you can mention points that you will return to later, but save your evidence and interpretation for the main body of the essay.

How much space you need for background depends on your topic and the scope of your essay. In our Braille example, we take a few sentences to introduce the topic and sketch the social context that the essay will address:

Now it’s time to narrow your focus and show exactly what you want to say about the topic. This is your thesis statement —a sentence or two that sums up your overall argument.

This is the most important part of your introduction. A  good thesis isn’t just a statement of fact, but a claim that requires evidence and explanation.

The goal is to clearly convey your own position in a debate or your central point about a topic.

Particularly in longer essays, it’s helpful to end the introduction by signposting what will be covered in each part. Keep it concise and give your reader a clear sense of the direction your argument will take.

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As you research and write, your argument might change focus or direction as you learn more.

For this reason, it’s often a good idea to wait until later in the writing process before you write the introduction paragraph—it can even be the very last thing you write.

When you’ve finished writing the essay body and conclusion , you should return to the introduction and check that it matches the content of the essay.

It’s especially important to make sure your thesis statement accurately represents what you do in the essay. If your argument has gone in a different direction than planned, tweak your thesis statement to match what you actually say.

To polish your writing, you can use something like a paraphrasing tool .

You can use the checklist below to make sure your introduction does everything it’s supposed to.

Checklist: Essay introduction

My first sentence is engaging and relevant.

I have introduced the topic with necessary background information.

I have defined any important terms.

My thesis statement clearly presents my main point or argument.

Everything in the introduction is relevant to the main body of the essay.

You have a strong introduction - now make sure the rest of your essay is just as good.

• Argumentative
• Literary analysis

This introduction to an argumentative essay sets up the debate about the internet and education, and then clearly states the position the essay will argue for.

The spread of the internet has had a world-changing effect, not least on the world of education. The use of the internet in academic contexts is on the rise, and its role in learning is hotly debated. For many teachers who did not grow up with this technology, its effects seem alarming and potentially harmful. This concern, while understandable, is misguided. The negatives of internet use are outweighed by its critical benefits for students and educators—as a uniquely comprehensive and accessible information source; a means of exposure to and engagement with different perspectives; and a highly flexible learning environment.

This introduction to a short expository essay leads into the topic (the invention of the printing press) and states the main point the essay will explain (the effect of this invention on European society).

In many ways, the invention of the printing press marked the end of the Middle Ages. The medieval period in Europe is often remembered as a time of intellectual and political stagnation. Prior to the Renaissance, the average person had very limited access to books and was unlikely to be literate. The invention of the printing press in the 15th century allowed for much less restricted circulation of information in Europe, paving the way for the Reformation.

This introduction to a literary analysis essay , about Mary Shelley’s Frankenstein , starts by describing a simplistic popular view of the story, and then states how the author will give a more complex analysis of the text’s literary devices.

Mary Shelley’s Frankenstein is often read as a crude cautionary tale. Arguably the first science fiction novel, its plot can be read as a warning about the dangers of scientific advancement unrestrained by ethical considerations. In this reading, and in popular culture representations of the character as a “mad scientist”, Victor Frankenstein represents the callous, arrogant ambition of modern science. However, far from providing a stable image of the character, Shelley uses shifting narrative perspectives to gradually transform our impression of Frankenstein, portraying him in an increasingly negative light as the novel goes on. While he initially appears to be a naive but sympathetic idealist, after the creature’s narrative Frankenstein begins to resemble—even in his own telling—the thoughtlessly cruel figure the creature represents him as.

If you want to know more about AI tools , college essays , or fallacies make sure to check out some of our other articles with explanations and examples or go directly to our tools!

• Ad hominem fallacy
• Post hoc fallacy
• Appeal to authority fallacy
• False cause fallacy
• Sunk cost fallacy

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Your essay introduction should include three main things, in this order:

• An opening hook to catch the reader’s attention.
• Relevant background information that the reader needs to know.
• A thesis statement that presents your main point or argument.

The length of each part depends on the length and complexity of your essay .

The “hook” is the first sentence of your essay introduction . It should lead the reader into your essay, giving a sense of why it’s interesting.

To write a good hook, avoid overly broad statements or long, dense sentences. Try to start with something clear, concise and catchy that will spark your reader’s curiosity.

A thesis statement is a sentence that sums up the central point of your paper or essay . Everything else you write should relate to this key idea.

The thesis statement is essential in any academic essay or research paper for two main reasons:

• It gives your writing direction and focus.
• It gives the reader a concise summary of your main point.

Without a clear thesis statement, an essay can end up rambling and unfocused, leaving your reader unsure of exactly what you want to say.

The structure of an essay is divided into an introduction that presents your topic and thesis statement , a body containing your in-depth analysis and arguments, and a conclusion wrapping up your ideas.

The structure of the body is flexible, but you should always spend some time thinking about how you can organize your essay to best serve your ideas.

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