How to Protect Your Business from Online Defamation

Everyday we find bold opinions posted online in the form of blogs, Youtube videos, Facebook statuses, Instagram stories, and tweets… then comments sections filled with hundreds of arguments and insults.

While nothing is inherently wrong with exercising our right to freedom of speech in an online medium, it doesn’t absolve anyone from the consequences that follow.

Let’s face it: the internet is not the safe space that we all hoped for it to be. While it provides us with an avenue for self-expression, it also gives audiences the freedom to react to everything we publish.

Say one controversial thing and if it’s spotted by the right (or wrong) eye, a horde of angry netizens will start mercilessly harassing you until you decide to delete your account and disappear from the online world - for better or for worse.

In today’s jargon, this is called “cancel culture”. It doesn’t matter if you meant well, the fake news you spread was only by accident, or it was sincerely your intention to lie or say something despicable - as long as the internet hates it, you’ll have to find a way to live with your damaged, “cancelled” reputation.

But then time heals all (or most) wounds and eventually, the netizens once up in arms over what you said will forget all about you. Just find a way to rebuild your self-esteem and go for a personal rebrand, then boom, you’re back in the game.

Well, that is if your only consequence was hate comments from a bunch of strangers you’ll never even have to meet personally.

But what if what you said doesn’t cost you just your reputation and pride. What if it will cost someone else’s?

Things will get messier. Riskier. Uglier.

Damaging someone else’s reputation and potentially causing the internet to cancel them can cost you hundreds, thousands, or even millions of dollars.

Word spreads fast, and anything you say can and will be used against you.

So if you’re not careful, you might end up defaming another person or company, only to realise your mistake too late: when it’s time for you and your business to pay for it.

What is defamation?

According to the Legal Services Commission of South Australia, defamation is the “publication of false and derogatory statements about another person, without any justification recognised by law.”

People may think they’ve been defamed if a person says something negative about them to damage their reputation. This can be explicitly or implicitly said through words (verbal or written) or other matter (e.g. songs, drawings, etc.).

If someone believes you’ve lied about their character, they can take legal action and sue you for violating the law of defamation, which protects individual reputation. This law assumes that “all people are of good character until the opposite is proved”.

So yes, you can be sued for defamation based on an exaggerated and offensive tweet, an article that turned out to be fake news, an ad hominem argument on a Facebook comment, or a brutally misleading online review.

This may seem very subjective based on the intention of the accused, but intent is irrelevant - it’s the impact to the defamed that matters.

Defamation can lead to severe punishment. Here are two of the biggest defamation cases in Australian History:

The case of Rebel Wilson

In a case against Bauer Media in 2017, Hollywood actress Rebel Wilson won $4.5 million, which became the largest defamation payout in Australian legal history - at least, until the Victorian court of appeal slashed the actress’ damages payout from $4.5m to $600,000.

Following a Supreme Court of Victoria Justice John Dixon said Bauer Media - publisher of Woman’s Day and The Australian Women’s Weekly - damaged Wilson's "reputation as an actress of integrity" after a series of articles that defamed Wilson, painting her to be a compulsive liar.

Ironically, it turns out Wilson wasn’t the liar between the two parties.

The case of Geoffrey Rush

In 2019, Oscar-winning actor Geoffrey Rush was awarded  $2.9 million, which is the largest defamation payout to a single person in Australia after Rebel Wilson’s damages payout had been slashed.

He won against Nationwide News - publisher of Sydney’s Daily Telegraph - after the latter published two articles saying that he was behaving inappropriately towards his former co-star Eryn Jean Norvill.

Seeing how huge the damages can be, imagine what can happen to your small business if you end up defaming someone, intentionally or otherwise, especially if they have a big name in their industry.

Small business defamation 

Social media is a powerful marketing tool, especially for small businesses trying to build their brand and make a name for themselves.

To generate more leads, it’s highly encouraged (and expected) that SMEs invest time and resources in publishing content regularly. This includes website blogs, eNewsletters, videos, articles, and social media posts.

Constantly coming up with great content can be challenging, and attracting an audience that will actively engage in it, more so. 

That’s why posting bold and sometimes controversial opinions can help gain more reach. More people will react, share, and engage in the comments.

However, some small businesses end up overdoing it and sharing opinions at the expense of the reputation of other people, organisations, or corporations, leading to defamation claims against the former.

One might argue, “it’s just my opinion!” but like I said, freedom of speech doesn’t absolve anyone of its consequences. Anything you publish on Facebook or other social media platforms, whether through the business’ page or your personal account, is considered public and therefore can’t be claimed as your opinion.

Additionally, as a business owner, you are responsible for anything published on your business’ website and social media pages. So even if you’re not the one who wrote and published the defamatory content, you may be held liable just as much as anyone else involved in the publication and/or distribution of the content.

According to Bruce Legal, a person who believes they have been defamed online must demonstrate these elements:

• The material must have been communicated to at least one person.
• The material must be defamatory. 
• The person claiming to have been defamed must be identifiable (it doesn’t necessarily need to include the person’s name, if the ordinary person can recognise the reference to the defamed person in the material, that will be enough).

How to avoid defaming someone online

If you’ve been accused of defamation, your first move should be to immediately seek legal advice.

Your absolute defence in any defamation lawsuit is the truth. So, if you can prove that you were speaking the complete truth regardless of how ugly that truth is, you’ll be sure to win the case. 

However, regardless of whether you can prove your innocence or not, defending yourself against a defamation claim can be a tedious process, especially when the case is brought to court. So just as with most unfortunate events, prevention is better than cure.

The best way to not have to go through the consequences of defamation is to not defame anyone at all.

This means:

• Do not post any defamatory posts or comments against someone in social media, even if you exclude their name.
• Do not say anything that will defame anyone in your blogs, videos, graphics, etc.
• Do not allow anyone to post or comment any defamatory statement on your website or social media pages. Delete them immediately if they get through.
• Avoid angry, ad hominem arguments on social media.
• Do not repost, retweet, share, or backlink to any defamatory material.

One more important factor you need to keep in mind is that Australia has limited defences for “freedom of speech” compared to other countries like the US, so it’s more crucial to filter your posts.

All of these factors seem easy to remember, but they are also equally easy to overlook and forget. The best way to implement all of these restrictions is to build a system and create processes within it that will ensure that any defamation will be avoided in every situation (e.g. ensuring that every piece of content goes through a series of proofreading processes and cross-checking of legitimate sources).

How a business coach can help

Dealing with a defamation case in court is very time-consuming and costly.

While it’s important to seek legal advice immediately, consulting a business coach is also a good measure to take. They can act as an unbiased intermediary to help solve potential defamation problems before it goes to court. 

Apart from that, having a business coach can help you avoid getting into defamation-related situations in the first place.

A business coach will help you set up the right and repeatable systems and processes that will help you towards a direction that suits your business, and that means paving a path that strays away from legal issues. They can guide you on what you can or cannot say online about any other person or business.

Social media is a great platform for self-expression. However, we must remember that as free as we are to speak, others also have the freedom to react.

So spreading misleading information that can ruin another’s reputation will come back to bite you, sometimes in the form of an expensive lawsuit that will damage you and your business’ finances and credibility.

Online defamation can have heavy consequences. So, in the occasion that you end up being accused of defamation, your first step should always be to seek legal advice and speak directly to a lawyer, who is best placed to help you defend yourself.

But prevention is better than cure, so don’t wait for someone to find an issue in your content. Steer clear from any defamation claims, whether on your business page or personal profile, by ensuring that:

• All your claims about another person or company are purely based on facts.
• The strong opinions you post don’t paint anyone’s character in a bad light.

When it comes to online content, always think before you post.

Need more advice on how to protect your business from online defamation? Let’s talk: https://www.evolvetogrow.com.au/book