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We live in a social media-saturated world, where people are constantly engaging and sharing. But does the very act of using these platforms make us publishers in a way we never used to be?

It’s just one of the many questions arising from the first In-house Corporate Lawyers forum for 2025: navigating the complex intersection of defamation law and social media and why it is crucial for in-house and government lawyers to stay vigilant.

An expert panel, including Judge Judith Gibson of the District Court of NSW, Larina Alick from Nine Publishing and Australian Community Media, and Gina McWilliams of News Corp Australia, convened at the Law Society of NSW to dissect the shifting landscape of defamation. The evening, moderated by Linden Barnes, Senior Ethics Solicitor at the Law Society, delivered a sobering yet crucial look at the challenges posed by the rapid growth of online communication.

A central theme of the discussion was the critical importance of understanding the term “publication” in the context of social media. The panellists stressed that even seemingly casual posts, comments, and shares could constitute publication, potentially triggering defamation proceedings.

Alick pointed out that everyone is now a publisher, including employees in various industries, “Nurses who think they work in a hospital, you’re not if you’re on social media, you’re a publisher, which means you have all liabilities, and your personal assets are in as much danger as any other publisher.”

She further warned, “[W]hen it comes to defamation, they could publish something with the absolute best of intentions and still get sued. They could publish something that’s true and still get sued … The problem is not whether or not it’s true, it’s whether or not you can prove it.”

“If it’s online and accessible, it’s published,” McWilliams asserted. She then referenced the Fairfax Media Publications Pty Ltd v Voller decision, which placed liability on media outlets for third-party Facebook comments, even without prior knowledge. This ruling, she noted, creates a situation where publishers face potential defamation claims for content they may have little or no control over, including user-generated content, multimedia, and hyperlinks.

Organisations were urged to implement clear social media policies, secure appropriate insurance coverage, and seek timely legal advice when confronted with potential defamation issues. The forum highlighted the staggering costs associated with defamation cases, citing the recent Ben Roberts-Smith case, which reportedly reached $35 million – a stark reminder of the financial risks involved.

The forum emphasised the dynamic nature of defamation law, noting the significant legislative changes spearheaded by New South Wales and Victoria. These reforms aim to modernise the law and better reflect the realities of digital communication. However, with laws differing from state to state, McWilliams said it was crucial for lawyers to work out which Australian jurisdiction their complaint or proceedings are likely to fall under “because, at the moment, it is a bit of a hot mess.”

The discussion also delved into the various defences available to defendants, including truth, honest opinion, and public interest, and the need for robust evidence to support these defences, particularly in the context of social media, where information can be easily manipulated or misrepresented.

Judge Gibson warned lawyers to ensure their clients stay away from social media for the duration of a trial. “[T]ell your client, ‘Don’t put anything on social media ever. Don’t say what a terrible person your husband is…'”

She added, “But don’t let them go too far. Don’t have them wipe the whole lot…” referring to a case where a plaintiff had posted a message on her social media account asking for help deleting photos. Gibson summarised that the Court of Appeal “struck her whole case out because she destroyed documents.”

The digital age isn’t slowing down, and neither is the threat of online defamation. The Law Society’s forum was a wake-up call, providing crucial clarity on this complex legal landscape. Attendees left with a renewed sense of responsibility, understanding the power—and potential pitfalls—of their online actions. The Law Society of NSW plans to continue educating the public and legal professionals on this area of law, ensuring that individuals and organisations are equipped to navigate the ever-evolving world of social media.

The next in-house corporate lawyers event will take a deep dive into leadership and culture on 20 March 2025.