How to Protect Your Business from Online Defamation

You don’t have to search too far online to find a bold opinion, brash generalisation or slander towards a person, brand or idea, correct or not.  Corrections, criticisms, arguments and insults are thrown at us in blogs, YouTube videos, Facebook statuses, Instagram stories, and tweets… and of course, the thousands of random strangers globally piping up in comment sections on what should or shouldn’t have been said or done.

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

Let’s face it: the internet is not the safe space that we hoped it would be. While it provides us with an avenue for self-expression, it also gives audiences the freedom to react to everything we publish and tell us off when we have stepped out of line.

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. The only way to stop it is 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, if the fake news you spread was accidental, or if 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.

The good news is time heals all (or most) wounds and eventually, the netizens once up in arms over what you said will forget all about you and move on to a new target. That gives you the breathing space to rebuild your self-esteem, go for a personal rebrand and boom, you’re back in the game.

There is an exception to this and that’s if what you said isn’t a random or general comment or idea, if it’s directed at someone else, and your words don’t just cost you just your reputation and pride, it costs someone else’s.

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.

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

Word (and clicks) spreads fast. Anything you say can and will be used against you and retaliation is swift.

What is defamation?

The Legal Services Commission of South Australia defines defamation as the “publication of false and derogatory statements about another person, without any justification recognised by law.”  This can be explicitly or implicitly said through words (verbal or written) or other matter (songs, drawings, etc.).

The reason this is such a big topic is because it’s a noisy world online, so when it comes to finding impactful marketing strategies, I’ve had some clients come to me with a giant mess because they’ve gone for comments to draw attention and make waves…and ended up with a flood of negative comments and backlash that is difficult to recover from. Working through it with them takes a lot of time and energy and every one of them always wishes they had done things differently. For most of them, it’s regaining their confidence to try again that is the biggest part.

The bottom line is this: You may well have an opinion about a person or company, what they’ve said or what they stand for, but taking your opinion online, to a video or in a public statement can lead to them saying they’ve been defamed if the negative comments hurt their reputation. 

Individual reputation is protected by law. This law assumes that “all people are of good character until the opposite is proved”. If someone believes you’ve lied about their character or slanted towards an unfair depiction of who they are, they can take legal action and sue you for violating the law of defamation. 

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

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

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 in 2015, painting her to be a compulsive liar and a fake. They also accessed and published images from a high school yearbook from an unnamed classmate. 

The classmate remained anonymous so never had to face consequences for handing over information to the magazines and also not ever giving readers an understanding of if the two were in fact close friends or just people who passed in school corridors. On the other side, Rebel was left humiliated with no room to defend herself, was turned down for new roles and suffered financial loss and emotional and physical stress.

The payout was reduced when Bauer Media appealed the decision citing that there was no proof the roles and financial loss occurred because of the published articles and could have been due to other reasons.

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. Like Rebel the media company appealed the verdict but on this occasion were overruled.

Nationwide News - publisher of Sydney’s Daily Telegraph - published two articles saying that Rush behaved inappropriately towards his former co-star Eryn Jean Norvill portraying him as a sexual predator.

While there is still debate about what happened, it needed to be addressed legally through formal complaints and followed up by law officials before any published information went public. 

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 

I get why business owners tread the line and even occasionally overstep it. I’m not saying it's okay, not at all, but I can understand what they are looking for. Social media is a powerful marketing tool, especially for small businesses trying to build their brand and make a name for themselves.

Constantly coming up with great content can be a challenge, attracting active engagement even 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 that can be costly in terms of brand recognition, reputation and financial loss.

The excuse that comes up is always, “it’s just my opinion!” but saying whatever you like comes with consequences and you need to prepare for that.

Anything you publish on Facebook or other social media platforms, whether through your business page or personal account is public information. From that point on it moves from a simple personal opinion to a publicly owned and global statement.

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 content, you may be held liable for the publication and distribution of defamatory content.

If someone feels there has been online defamation that impacts them negatively there are some steps they will need to prove:

• 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

Be careful what you say online. The best way to not have to go through the consequences of defamation is to not defame anyone at all. Never write and publish in one hit. Read everything carefully and have some time to reconsider before you hit publish. Be especially careful of getting caught up in emotions when writing and publishing, which can include frustration, excitement and playful humour that might not translate well.

This means:

• Do not post any defamatory posts or comments against someone on social media, even if you exclude their name
• Do not say anything that will defame anyone in your blogs, videos, graphics or content material
• Do not allow anyone to post or comment a defamatory statement on your website or social media pages and 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 from other people or sites

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.

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. If you can prove that what you published is factual (regardless of how ugly that truth is) it’s very possible to win the case. 

Regardless of whether you can prove your innocence or not, defending yourself against a defamation claim can be a time-consuming, costly and taxing process, especially when the case is brought to court. So just as with most unfortunate events, prevention is better than cure.

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).

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.