Social Media, Defamation and Protected Political Speech

Wednesday 23 August 2017 @ 12.12 p.m. | IP & Media | Legal Research

As we have previously stated, there has been a rise of defamation cases involving social media, especially in regards to use of Facebook and Twitter. However, a recent High Court Appeal case regarding social media use also brings up another issue - that of protected political speech.

Social Media Defamation Cases in Australia

There has been a flurry of social media defamation cases in Australia, mainly involving payment of damages with some of them highlighted as follows:

“… 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.”

This has been followed only recently by an international case where a Swiss court has fined a man for “liking” defamatory comments on Facebook, in what is believed to be the first case of its kind.

According to a statement from the Zurich district court, the 45-year-old defendant accused an animal rights activist, Erwin Kessler, of racism and antisemitism and hit the “like” button under several comments from third parties about Kessler that were deemed inflammatory.

The comments were made in 2015 during heated discussions on a range of Facebook groups about which animal welfare groups should be permitted to take part in a vegan street festival, the Swiss daily Tages Anzeiger reported and Kessler sued more than a dozen people who took part in those exchanges.

The Zurich judge ruled the defendant had failed to prove that the comments he had liked on Facebook were true. At the same time, by liking the comments the man had disseminated them to his list of Facebook contacts, and “thus made them accessible to a large number of people”, the statement said. The lawyer for one of the defendants stated:

"the courts needed to urgently clarify whether hitting a like button on social media should be given the same weight as other forms of speech more commonly cited in defamation cases."

New High Court Appeal on Social Media and Political Speech

But as the lawyer for the defendant in the Swiss case has pointed out, when is activity on social media serious enough to warrant other convictions. This has been recently tested in the High Court Appeal of Bernard Gaynor (which is currently at written submissions in the High Court).

Former Australian Defence Force reservist and conservative Catholic Bernard Gaynor is testing the limits of protected political speech in the Australian Constitution by challenging his dismissal from the Army Reserves, which came after he breached its online commentary rules by posting anti-LGBTQ statements.

In 2015, Gaynor successfully argued before a single Federal Court Justice that his termination infringed the freedom of political communication implied in the constitution by Lange's Case in 1997.

In Lange’s Case, the Court set out a two stage test for the validity of laws thought to interfere with the freedom:

  1. Whether the law burdens freedom of communication about government or political matters either in its terms, operation or effect; and
  2. If it does so, whether the law is “reasonably appropriate and adapted to serve a legitimate end in a way that is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government”.

The Chief of the Defence Force appealed the Federal Court decision, claiming that freedom of political speech principles did not overrule regulations that allow an officer to be dismissed if his service is not in the interest of the Defence Force. And this is quite unusual as public servants are uniquely restricted when it comes to political speech with the guiding rule being that the post must be "apolitical".

Earlier this year (2017), the Full Federal Court agreed with the Defence Force’s arguments and found that the termination of Gaynor’s commission was not a breach of the Lange principles. They noted that “implied freedom does not involve, nor does it recognise or confer, any personal rights on individuals”. Rather it is a freedom from government action or laws that constrain political expression.

There are obvious tensions in the law, including the extent to which employers can control the expressions of their employees, especially as social media has begun to blur the line between work and home life. More recent decisions like those illustrated in this article have indicated that "private" social media posts can now be considered part of employment activity and subject to employment law and regulation. It will be interesting to see the results of Gaynor's High Court Appeal and whether protection on social media can be afforded through protection of political speech in the Australian Constitution or through some other means.

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