In the recent case of Al Muderis v Duncan  NSWSC 1363 (14 September 2016), the applicant (an orthopaedic surgeon) made an interlocutory application to restrain the continued publication on the internet of material he alleged was defamatory of him. The defendant had not responded to correspondence and was not represented at the interlocutory hearing.
The application arose against the background of a complaint by a patient to the Health Care Complaints Commission (HCCC), which was dismissed. A medical negligence claim was also made and dismissed.
Later, the defendant pleaded guilty to offences of intimidation and using a carriage service to harass, menace or offend. He was convicted and sentenced to four months imprisonment suspended on conditions. An apprehended violence order (AVO) was made prohibiting the patient from assaulting, molesting, harassing or threatening the doctor, engaging in any other conduct that intimidates him, or stalking him. The AVO made specific reference to operation of a website.
The court made orders as requested by the medical practitioner, including an order directed to the website host registration entity. The website now appears to have been taken down.
Defamation claims based on social media publications by private individuals are increasingly being litigated in Australia:
“… when defamatory publications are made on social media it is common knowledge that they spread. They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”
More defamation cases arising out of social media can be anticipated, but the cases that make it to court represent only a fraction of the concerns about defamatory publications on social media. Many cases settle before they reach court and still more are resolved before any claim is even commenced in court.
There are several ways in which defamation law might be reformed in Australia that could promote freedom of speech, particularly for everyday communication. Currently, plaintiffs suing for defamation in Australia do not have to demonstrate that they suffered a minimum level of harm at the outset of their claims. Publication to one other person is sufficient for a claim in defamation, and damage to reputation is presumed. Defamation law is arguably engaged at too low a level to be useful in this instance for online claims in Australia.
NDA Law Senior Associate and Media Specialist, Paul Gordon, has warned businesses that fail to adhere to commercial affiliations disclosure requirements on social media, could land themselves in legal trouble.
He said that reviews by paid online influencers are now an established part of the marketing mix, but there is confusion about the legalities of such paid comments. He commented:
“A large portion of current online behaviour on platforms such as TripAdvisor or Instagram is likely to be classified as ‘deceptive and misleading conduct’. Businesses might use influencers to sell services or products, but that doesn’t always make it legal. Sometimes it’s hard to tell if an online reviewer is genuinely sharing news about a product because they like it, or if it’s because they have entered a relationship that benefits them to do so."
Mr Gordon said that from the Australian Competition and Consumer Commission’s (ACCC) point of view, businesses must be transparent about what is the individuals own opinions and what they’ve been paid to say.
He went on to say that businesses should make sure that responsibilities for disclosure are detailed in any contracts with influencers or their agents, and that all posts made should be monitored.
TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.
Al Muderis v Duncan  NSWSC 1363 (14 September 2016 )
Social media influencers causing legal issues – lawyersweekly.com.au
Social media and defamation law pose threats to free speech, and it’s time for reform – theconversation.com
Website Defamation Of Medical Practitioner – billmaddens.wordpress.com
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