A short thought on the status of defamation law in this technological age.
Internet trolling is a term people are becoming more acquainted with as more of society migrate to an internet-based lifestyle. For those still unaware, a troll or trolling behaviour as defined by the internet’s go-to resource Wikipedia is ‘a person who sows discord on the internet by starting arguments or upsetting people, by posting inflammatory, extraneous, or off-topic messages in an online community’.[1]
The reason for bringing this up is that it is not uncommon for trolling behaviour to fall foul of our defamation laws – posting on social media can be deemed a publication and damages can flow if the material is defamatory in nature.[2] However, it would be safe to assume many published defamatory remarks go by unchecked.
Google Trends would suggest, the term internet troll/trolling has only really been in the public sphere since about 2005 with a major spike in early 2012,[3] and if media reports are anything to judge by, it’s still a persistent behaviour rife throughout the internet community.[4] It’s this increasing encroachment of trolling on the public consciousness that ignited my thought.
A crucial limb of any successful defamation claim, is that the published material must be defamatory in nature. The High Court has determined this to be any material that is likely to lead an ordinary reasonable person to think less of the plaintiff.[5] Concentrating on this aspect, the crux of my thought is that as we live in a world where trolling is an ever-present unfortunate aspect of an internet lifestyle, could one hypothetically argue that defamatory material was published during a spate of trolling, an act that may have been recognised by all at the time of publication (google ‘don’t feed the trolls’ for context) and that as such any reasonable person would not take the material as serious, thereby preserving the reputation of the plaintiff and dispersing any grounds for defamation?
This notion is somewhat akin to the concept of satire, no one takes satirical material seriously, hence reputations are maintained and no defamation occurs. Noting of course that there are numerous permutations in which the above scenario could play out which may bring it in line with such authorities that protect satire, or distinguish it from them. Amusingly enough though, the above situation runs counter to the adage that this piece is named after – it’s on the internet, it must be true, but I digress.
Evidently the pioneering cases in online defamation had to demonstrate reliance on internet publication in order to substantiate their claims. But, could an increasingly sceptical society cognisant of an online troll presence whittle away the reliance and influence internet publications have? If so could this impact the foundations of online defamation law?
Probably not, but as societies interactions with and within the internet are a continuing evolution, aspects of the situation illustrated above may become clearer or possibly resolved. Of course any claim of defamation requires a proper consideration of the law and present authorities. Still it’s an interesting thought.
No part of this post is to be considered or constitutes legal advice in any way, any opinions or information provided is for either entertainment or educational purposes only, contact Alex via phone, email or through the CONTACT page if you require legal assistance.
[1] Internet troll (26 August 2015) Wikipedia < https://en.wikipedia.org/wiki/Internet_troll>.
[2] Mickle v Farley [2013] NSWDC 295.
[3] Google trends (26 August 2015) Google < https://www.google.com.au/trends/explore#q=troll%2C%20trolling%2C%20internet%20troll&geo=AU&cmpt=q&tz=Etc%2FGMT-10>.
[4] Peter Munro, Everyday sadists: Inside the mind of an online troll (7 December 2014) Sydney Morning Herald <http://www.smh.com.au/national/everyday-sadists-inside-the-mind-of-an-online-troll-20141201-11xo7u.html#ixzz3jscBnGiQ>.
[5] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460; 254 ALR 606; [2009] HCA 16 at [5].