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'Evil' on social media

Dr Sushil K Sharma
Saturday, February 24, 2018

Severed limbs of the dead involved in a horrific accident were on social media moments after the incident even before the arrival of the police. Fijians posed smiling for the camera with the limbs, still bloodied and warm to the touch.

While all this drama was unfolding, the deceased's wife, children and relatives knew nothing of his sudden sad demise. The Fiji Times editorial (09/02/18) eloquently sums up some of the issues the above incident raises for us as a community, society and nation.

We all know Fijians have taken to the internet and mobile telephony technological revolution in the past decade or so, like "ducks to water". This has impacted not only the carefree manner of discourse on social media but also established the facts that many Fijians simply have no idea of libel and defamation laws. Or the fact that they can be held libel for what they say and how they say it on the social media.

The majority of people in Fiji, who frequently publish content on Facebook, Twitter, blog sites, Instagram, Youtube etc are often laymen, students, businessmen and women, academics and public figures, who would not necessarily have had to deal with issues of defamation previously.

Defamatory content thus can reach thousands of people, and if it goes viral, millions within minutes and hours. Defamation via the digital social media or the traditional print media of newspapers, handouts, and magazines is treated the same way, without even the need to amend the present defamation legislations, as was recently evidenced in the Australian and English jurisdictions, in a few ground-breaking cases.

This clearly means that you can be sued for any defamatory statements you post online, either on your private page or someone else's. The person who lets defamatory content, written by you, sit on their site, are also fully liable for costs and damages.

In the Australian and English examples, where a number of prosecutions have been successfully undertaken by the expansion of the present definition of defamation, cases prosecuted have clearly established that defamation already extends to the internet within those legal systems.

Fiji's legal system like that of Australia, New Zealand and the United Kingdom are similar in areas of common law and it might be that the courts in Fiji will also use as a guide, precedents of recent judgments of the Australian and the United Kingdom.

This article should be a wake-up call for anyone using social media to be careful about what they post. A split second decision to share information through social media could be very expensive as social media is no different to other forms of publishing in terms of defamation.

The fact that social media can assist in broadcasting adds further risks for aggravated damages. Defamation law needs to walk a fine line and balance between the right to freedom of speech and the right of a person to avoid defamation.

On the one hand we need to be able to freely talk about our experiences in a truthful manner without fear of a lawsuit, anything mean, but true. On the other hand people have a right to not have false statements made that will damage their reputation.

Discourse is essential to a free society and the more open and honest the discourse, the better for society.

Defamation occurs when a person intentionally spreads information about another person, group or company, who damages their reputation or makes others think less of them. This can also be in any form of ridicule but does not cover where truth is involved. Regardless of the medium of expression — internet, mobile phones, radio, prints — defamation is actionable.

A person can be defamed by what one writes about him or her on Facebook, Twitter, through photos posted online, or anything else that would constitute defamation in the print media, like your daily newspaper.

Though defamation cases involving the internet and social media are relatively new and there have been no prosecutions in Fiji the same principles would apply, I think, as established clearly by the Australian and English jurisdictions.

People who go online should also note that a person who did not create the defamatory material is also fully liable for damages, for sharing, re- tweeting a tweet, or even keeping it on their electronic message board. Truth or statements which were an expression of honestly held beliefs or an opinion can be used as a legitimate defense to defamation.

It is defamatory to state someone is corrupt, dishonest or disloyal. Users need not ridicule anyone, state that someone has a contagious disease, suffering from insanity, or say anything that is likely to cause the person to be avoided or shunned, even if there is no suggestion of bad character.

Australia's first social media defamation case proceeded to full trial recently, with a former student ordered to pay more than $A105,000 ($F165,220) in damages over a series of defamatory posts on Facebook and Twitter, about a teacher at his school.

This was the first time decisions about particular tweets have progressed this far in Australia.

In Australia, a man has successfully sued his estranged wife for defamation over a Facebook post that suggested she was a victim of domestic violence after the court found she could not prove the statement was true.

The plaintiff, a teacher named Miro Dabrowski, was awarded $A12,500 ($F19669.59) in damages at the West Australian district court in December 2012 by Justice Michael Bowden.

The offending post, which was posted on his estranged wife Robyn Greeuw's public Facebook profile in December 2012, read: "Separated from Miro Dabrowski after 18 years of suffering domestic violence and abuse. Now fighting the system, to keep my children safe."

Facebook is a public forum and anything that you would not publish in a newspaper, should not be put on Facebook. The internet is so instant that once people have a thought, they write it and it is "published" and becomes a public item. It is not just limited to your friends who are seeing it.

Once published, your statements are there on record for ever and you have lost control of your statement and cannot take it back. Even if you delete it, people may make a copy, have taken screenshot and photo or shared, forwarded or "re-tweeted" it.

It may suffice to end this article on a small snippet from an Australian judge's statement for the plaintiff in one of the cases relating to social media, and one which we all have to take due note of.

"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."

* Dr Sushil K Sharma BA MA MEng (RMIT) PhD (Melbourne) is an associate professor of meteorology at the Fiji National University. The views expressed are his and not of FNU or this newspaper.

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