June 2016

Internet users appear to expect it, and as a society we seem to be increasingly immune to it, but is that ‘trolling’ you’re doing (or suffering) online able to be actioned in court? The answer may be yes more often than you would anticipate.

The mode of communication does not often determine the extent of potential liability; if something would be defamatory in a newspaper, it is equally so online. Likewise, if a publication would tend to interfere with established commercial dealings, or to infringe the lawful entitlements of its subject (e.g. where an obligation of confidentiality exists, or there is a reasonable expectation of privacy) relief may be able to be found through injunctions or other court actions.

Notwithstanding the sense of anonymity conveyed in online communications (hidden behind usernames/pseudonyms) increasingly sophisticated discovery processes exist to establish identity and attribute liability.

The Court of Appeal’s 2014 decision in Murray v Wishart (Facebook comments following the publication of a book resulting in defamation proceedings) makes it clear that not only can the initial publisher/statement-maker be liable, but that online publications can be ‘adopted’, and an online host become liable for damage resulting from such publications, once they have been placed on notice.

Personal responsibility remains a component of online publications; if you wouldn’t say it in print, don’t put it online.