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Warning to Facebook users: even a "Like" can cause legal trouble

Opinion

Reports of a Facebook user overseas being convicted of defamation by simply “liking” a post should sound loud warning bells for all Australian social media users, writes Adelaide lawyer Natalie Abela.

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In the landmark ruling, the man from Zurich was found guilty after hitting the “like” button on posts accusing another man of anti-Semitism and racism.

The plaintiff claimed that by “liking” the posts the defendant had spread false statements and made it more visible to a larger audience. The judge ruled that a “like” demonstrated the defendant clearly supported the post’s content.

Considering the proliferation of social media platforms across Australia that allow individuals to make or endorse public commentary, this judgment, albeit made in an overseas jurisdiction, is too important to ignore.

At the very least, the case sends a warning shot across the bow of social media users and serves as a sharp reminder to think before you click.

However, it could be a sign of things to come in Australia and the logical extension to the court’s treatment of online defamation cases as our laws governing the use of social media continue to evolve.

While I’m unaware of convictions for similar “like” post actions in Australia, it may only be a matter of time before we see cases of this nature before our courts.

In recent years through my practice with Cowell Clarke I’ve seen a sharp rise in the prevalence of social media commentary within defamation cases and there is no signs of this slowing.

Defamation law deals with the right to take action against parties responsible for communicating inappropriate accusations that may harm the reputation of a person or organisation. It relates to both verbal and written communications, across any media – verbal, digital and printed.

Back in 2014, legal history was made when a teacher in New South Wales won a legal case against a former student who had been found to be have defamed her on social media.

The former student was ordered to pay $105,000 for making false accusations about the teacher on Facebook and Twitter.

This case, and that in Zurich, highlight a range of issues for anyone making posts, whether they relate to an individual or a business.

What many social media users fail to realise is that the courts treat social media platforms in exactly the same way as other traditional publishing media channels. Every time you post, comment, message, tweet, share or submit information on social media you run the risk of becoming involved in legal proceedings.

These are very real risks that are heightened by four unique features associated with social media namely: 1) ease of accessibility to a public platform, 2) exposure to a large audience, 3) ability for others to share what you say, and 4) permanency of posts.

I’m constantly advising clients to err on the side of caution when posting comments or endorsing someone else’s comments on social media, and to take the following risk test.

Before you post ask yourself:

If the answer to any of these questions is yes, then re-consider whether it is worth posting.

Natalie Abela is a partner at Adelaide law firm Cowell Clarke and leader of its defamation practice.

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