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Posted: 2018-03-22 04:18:55

When you read the detail of the defamation cases, it becomes clear that comments on social media, on websites, in emails or made through other means of digital communication are the primary cause of complaint.

There was the first Twitter case, where a misguided former student posted a social media character assassination against a school teacher because he mistakenly thought the teacher had cost his father his job.

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And the disgruntled businessman who used the social media platform WeChat and targeted emails to tell the world a meat trader was a conman, corrupt and a criminal, with no factual basis.

Then there was the Victorian junior football umpire with Asperger’s Syndrome who was taunted on a US autism website with falsities that he was a paedophile and was faking his condition.

For centuries, people have been inclined to write poison pen letters, spread nasty rumours and to post sick messages on public noticeboards and toilet walls. The internet and social media has given them a wide audience for their bile - but that wider publication means their victims can also now turn to defamation laws for compensation. And they are doing just that.

Those laws are now desperately in need of reform if they are to catch up with the social and technological changes of the past decade.

For starters, the triviality defence is flawed and needs to include something like the UK’s “serious harm” test – requiring serious reputational harm as a prerequisite to an action. This would likely stop many social media-related cases before they reached court.

An  "offer of amends" system that intends to keep actions out of court and settled early is complex and often appealed. Other incentives should be put in place as well to educate parties about settling their differences earlier, to avoid the expense and distress of litigation.

Changes also need to encourage public interest journalism by enshrining a straightforward responsible communication defence that does not require the identification of confidential sources. And satirists should get their own defence to better protect robust political critique via parody and satire.

But we need to do more than reform the law - we need investment in digital legal literacy. School and adult learning curricula must include the basic legalities of social media and internet use – stressing the key risks posed by defamatory and contemptuous posts.

Teachers might repeat the words our mothers once used to scold us, or to soothe our fragile egos: “Do not say to others what you do not like to be said to you” and remember that “sticks and stones may break my bones, but names will never hurt me”.

Education and mediation encouraging mindful communication might resolve some defamation actions before they even start.

Mark Pearson is a professor of journalism and social media at Griffith University. He is co-author (with Mark Polden) of The Journalist’s Guide to Media Law – a handbook for communicators in a digital world.

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