Online defamation by 'Keyboard Warriors'

Social media and online platforms given rise to a breed of online troublemakers known as "keyboard warriors."

As a defamation lawyer, I witness firsthand the impact these individuals can have on my clients' reputations and businesses.

In this blog post, I explore the phenomenon of keyboard warriors, their motivations, and the potential consequences of their actions.

I. Defining Keyboard Warriors

A keyboard warrior is an individual who aggressively and passionately expresses their opinions, beliefs, or arguments online, typically through social media, forums, or other digital platforms, but avoids or refrains from engaging in face-to-face discussions or real-life confrontations.

These individuals are often perceived as overly confrontational, argumentative, and critical, hiding behind the anonymity and safety that the internet provides.

They might engage in trolling, cyberbullying, or other disruptive online behaviors, with little regard for the feelings or opinions of others.

II. Why Do People Become Keyboard Warriors?

There are various reasons why someone might become a keyboard warrior.

Some of these reasons include:

1. Anonymity: The internet provides a sense of anonymity, which emboldens some people to express their opinions more aggressively than they would in a face-to-face setting.

2. Emotional venting: Some individuals may use online platforms as a way to vent their emotions and frustrations, making them more confrontational in digital spaces.

3. Social validation: The desire for likes, shares, and other forms of social validation can prompt people to be more vocal and aggressive in their online opinions.

4. Lack of social skills: Some individuals may lack the social skills necessary for effective face-to-face communication, causing them to feel more comfortable expressing themselves online.

5. Insecurity: People who feel insecure about their opinions or knowledge might use the internet as a platform to assert themselves, compensating for their perceived shortcomings.

6. Disinhibition effect: Online communication often lacks the social cues and context that exist in face-to-face interactions, leading to a reduced sense of responsibility and increased impulsivity.

7. Echo chambers: People often surround themselves with like-minded individuals online, which can reinforce their beliefs and encourage aggressive behavior towards those who disagree.

8. Activism: Some people may become keyboard warriors to promote a cause, spread awareness, or influence public opinion.

9. Boredom or entertainment: For some, engaging in online arguments can be a source of entertainment or a way to pass the time.

10. Power dynamics: The internet allows people to feel a sense of power and control over their interactions, which may lead them to be more confrontational.

Understanding the motivations behind keyboard warriors can help businesses and individuals better manage and respond to their actions.

III. The Consequences of Keyboard Warriors on Reputation and Business

The impact of keyboard warriors can be far-reaching and damaging to businesses and individuals alike.

Defamatory statements posted online can spread quickly, leading to financial loss, harm to personal and professional relationships, and damage to reputations that may take years to recover from.

Furthermore, legal remedies can be costly and time-consuming, and even when successful, they may not fully repair the damage done.

Key Take-Aways

• Keyboard warriors are individuals who aggressively express their opinions online but avoid face-to-face confrontations.

• The motivations for becoming a keyboard warrior can range from anonymity and emotional venting to activism and boredom.

• Defamatory statements made by keyboard warriors can cause significant harm to businesses and individuals, both financially and reputation-wise.

• Understanding the motivations behind keyboard warriors can help in developing effective strategies to manage and respond to their actions.

The Illusory Truth Effect in Defamation: The Importance of Prompt Action

In defamation, clients must be ready to act quickly and not dawdle.

Winston Churchill once observed: "A lie gets halfway around the world before the truth has a chance to get its pants on."

This statement holds particular relevance in the context of defamation cases, where the illusory truth effect can contribute to the rapid spread and entrenchment of falsehoods.

What is the Illusory Truth Effect?

The illusory truth effect is the feeling when we hear information that we believe it to be true, because we've heard it before.

The illusory truth effect is a cognitive bias that causes individuals to perceive false statements as true after being repeatedly exposed to them.

This psychological phenomenon underscores the power of repetition in shaping our beliefs and perceptions, making it a significant challenge in defamation cases where false information can become deeply ingrained in public perception.

First observed in a study by Hasher, Goldstein, and Toppino (1977), this psychological phenomenon highlights the power of repetition in shaping our beliefs and perceptions.

Several factors contribute to the illusory truth effect

1. Cognitive fluency: Repeated exposure to information makes it easier for our brains to process that information, leading to an increased sense of familiarity and truthfulness.

2. Confirmation bias: People have a natural tendency to favour information that aligns with their existing beliefs, making it more likely that they will accept repeated false statements as true.

3. Source amnesia: Over time, people may forget the origin of the information they have encountered, making it difficult to discern whether the source was credible or not.

Implications for Defamation Cases

In defamation cases, the illusory truth effect highlights the importance of acting promptly when defamed.

The longer false information is allowed to circulate, the more deeply it becomes entrenched in public perception, making it increasingly difficult to restore reputations and refute claims.

The widespread use of social media and digital platforms can further amplify the effect, enabling false information to be shared and repeated on a global scale.

Strategies for Addressing the Illusory Truth Effect in Defamation Cases

1. Acting quickly: When faced with defamatory statements, it is essential to take immediate action to mitigate the spread of misinformation. By responding promptly, legal professionals can limit the extent of reputational damage and challenge falsehoods before they become deeply ingrained.

2. Fact-checking and providing accurate information: Thoroughly investigating claims and presenting accurate information can help counteract the impact of false statements. Demonstrating the inaccuracy of defamatory statements can help to discredit the falsehoods and restore the reputations of those affected.

3. Educating the public and the court about the illusory truth effect: Raising awareness of this cognitive bias can help create a more discerning audience that is less susceptible to the influence of misinformation. This can be achieved through expert evidence, articles, and presentations.

4. Emphasizing the credibility of sources: When presenting information in court, defamation lawyers should emphasize the credibility of their sources to counteract the influence of the illusory truth effect. Establishing the reliability of the information being presented can help challenge false beliefs and promote a more accurate understanding of the facts.

5. Engaging in effective communication: Legal professionals should strive to communicate complex information in a clear, concise, and compelling manner. This can help ensure that the truth is more easily understood and retained by the audience, reducing the impact of the illusory truth effect.

Understanding defamation: What makes a statement defamatory?

A simple explanation of what makes something defamatory ... does it make people (a) think less of the person it is about, or, (b) make people want to avoid that person.

It's not necessary for the statement to say that the person is bad, but if it says that they are not good at their job or lack qualifications, that is enough.

An example is if someone says "X is a nice person but can't do surgery well" about a surgeon, it would be damaging to their reputation because it affects their profession, but if someone says the exact same words about a person who isn't a surgeon (perhaps, for example, where it turns out the person is actually a plumber), it wouldn't be considered defamatory.

The Link Between Duels and Defamation

Let's duel at dawn! ... The history of defamation takes most people by surprise, but makes sense when you work as a defamation lawyer.

Doing this job, you come to realise that it's not so much about money for the injured party. It's about their reputation being vindicated.

The evolution of how society deals with false statements that damages a person's reputation has many twists and turns. But one linkage is especially thought-provoking.

In the past, the duel was seen as a way to restore a person's honour if it was believed that their reputation had been damaged by false statements.

As society progressed, the use of duels as a means of resolving defamation cases was phased out and replaced with more legal forms of redress.

In 1613, King James I issued a royal edict against duelling, and this was reinforced by a Star Chamber decree in the following year.

From that point on, courts waged a continuous hostility to the duel in all its forms. They refused to regard it as in any way an affair of honour, but held it to be an unlawful assembly in an aggravated form.

The creation of the tort of written defamation was a way to address non-political, non-criminal libels.

It was a solution to the question of how to restrain these types of libels, when the vindication of the duel was no longer an option.

We often overlook the historical context of our laws, as we navigate a rapidly-changing landscape. But it helps to better understand human nature, if we learn about where our laws have come from.

Compensating for Injury to Feelings: A Standard Part of Defamation Damages

Many people are surprised to learn that damages for injury to feelings can be awarded in defamation cases. In addition to protecting one's reputation, the tort of defamation also recognizes the harm caused by hurt feelings.

Lord Diplock stated, "The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him."

An award for injury to feelings is a standard part of compensatory damages. Additionally, if the defendant's conduct has exacerbated the plaintiff's injury, they may also be entitled to "aggravated damages." It's important to note that corporations cannot claim injury to feelings.

It's possible for a plaintiff to prove injury to reputation by showing they have been "shunned and avoided" by others as a result of the defamatory statement. BUT, such evidence can also demonstrate substantial hurt to the plaintiff's feelings. 

What are the consequences of being a publisher of defamatory third party comments on social media?

DEFAMATION ... In Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27 the High Court affirmed traditional concepts of what a 'publisher' is in defamation law (in the context of social media).

1. The media companies Fairfax Media Publications, Nationwide News, and Australian News Channel were held liable for defamation as publishers of third party comments made on their public Facebook pages.

2. The High Court of Australia determined that liability as a publisher does not require knowledge of the defamatory matter and that any act of participation in the communication of defamatory matter to a third party is sufficient to render a person a publisher.

3. Importantly, the Court found that the degree of active and voluntary participation is irrelevant, provided that some kind of involvement can be proved.

4. The media companies were held liable for defamation as publishers of the defamatory third party comments because they actively and voluntarily participated in the process of making the comments available for comprehension by a third party.

If you have been a victim of defamation on social media, feel welcome to contact me to discuss your options.

The "Serious Harm Test" for Defamation in (Western) Australia

As a defamation lawyer in Western Australia, I am often asked about the requirements for bringing a defamation claim.

While the WA State Government has agreed with the Federal Government and other States and Territories to introduce the "serious harm test" by amending the Defamation Act 2005 (WA) at some stage, we do not yet know when this will be legislated.

Currently, the triviality defense continues to apply to all publications in Western Australia.

The serious harm test is already in effect in other jurisdictions in Australia, including New South Wales. This arose from a two-stage review of the Model Defamation Provisions.

The serious harm test replaced the triviality defence for publications in NSW made on or after July 1, 2021. For publications before that date, the triviality defence still applies and there is no requirement to show serious harm.

Under the serious harm test, plaintiffs in defamation cases must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation.

The determination of serious harm may consider evidence such as the scale of the publication and its readership, as well as testimony from the plaintiff and other witnesses.

One notable case that addressed the serious harm test in Australia is Newman v Whittington [2022] NSWSC 249.

In this case, the court confirmed that plaintiffs must prove on the balance of probabilities that the relevant publication "has caused, or is likely to cause, serious harm" to their reputation, abolishing the common law rule that damage was to be presumed and not proved.

The court noted that the "obvious genesis" of the serious harm element came from the equivalent provision in the United Kingdom's Defamation Act 2013, with there being "no material difference" between the two.

In Newman v Whittington, the pleadings asserted that serious harm was to be inferred from the "inherent seriousness of the defamatory imputations" and from the plaintiff's reputation as a family mediator.

The court struck out the pleadings as they did not clearly articulate an arguable case, and therefore there was no evidential assessment of whether serious harm had been established.

However, the court granted leave for the plaintiff to replead her claims of serious harm given the "novelty of the point."

In order to show that serious harm has been established in a defamation case, it is important to collate as much relevant evidence as possible.

This may include evidence of the scale of the publication and its readership, testimony from the plaintiff and other witnesses about the impact of the publication on their reputation, and any other relevant evidence that demonstrates the harm caused by the defamation.

By thoroughly preparing and presenting this evidence, plaintiffs can help to strengthen their case and increase the chances of success in a defamation claim.

As a defamation lawyer, when the test applies, it will be my job to help my clients gather and present the necessary evidence to prove serious harm and seek justice when their reputations have been wrongly damaged.

This is an example of the type of evidence that will need to be collated to show serious harm:

…

Sarah is a successful business owner who has built a reputation for herself as a trustworthy and reliable source of products and services in her industry.

However, one day she discovers that a former employee has posted a series of false and defamatory statements about her on a popular social media platform.

These statements claim that Sarah is dishonest and untrustworthy, and they are accompanied by a series of misleading photos and videos that are meant to further damage her reputation.

Sarah is devastated by these false claims and knows that they could seriously harm her business if left unchecked. She immediately seeks the help of a defamation lawyer to help her take legal action against her former employee.

To prove serious harm in her defamation case, Sarah and her lawyer gather a range of evidence to demonstrate the impact of the defamatory statements on her reputation.

This evidence includes:

• Testimony from Sarah and other witnesses about the impact of the defamatory statements on her reputation, including any negative feedback or comments she has received from customers or business partners.

• Evidence of the scale of the publication, such as the number of views, shares, and comments on the social media posts.

• Screenshots of the defamatory statements and accompanying photos and videos, as well as any other relevant evidence demonstrating the harm caused by the defamation.

• Documentation of any financial losses or other damages suffered as a result of the defamation, such as a decline in sales or loss of business opportunities.

By presenting this evidence to the court, Sarah and her lawyer are able to make a strong case that the defamatory statements have caused, or are likely to cause, serious harm to her reputation.

With this evidence in hand, they are able to seek justice for the damage caused by the defamation and help to restore Sarah's reputation in the eyes of her customers and business partners.

The Importance of a Well-Crafted Apology in Defamation Cases

Apologising is not always easy, but it is a crucial part of maintaining healthy relationships and repairing damage caused by our actions.

As a defamation lawyer, I see firsthand the importance of a well-crafted apology. Written and signed apologies are usually a crucial element of an overall settlement of a defamation case.

According to a recent TED talk published on YouTube, good apologies generally share certain elements. Here are some key points to consider when apologising:

1. Accept responsibility for your actions. This is the "centrepiece" of an apology and involves acknowledging and understanding the impact of your actions on the other person.

2. Seek to understand the perspective of the wronged party. A good apology isn't about making you feel better, it's about trying to repair the damage to your relationship. This means it's important to put your own ego aside and try to see things from the other person's point of view.

3, Offer a sincere apology, even if your mistake was an accident. Accidents do happen, but it's important to recognize that they can still cause harm and offer a sincere apology.

4. Clearly acknowledge wrongdoing. This means admitting specifically how you messed up and showing that you understand the impact of your actions.

5. Make an offer of repair. This can be a tangible gesture, like replacing something you damaged, or a more symbolic gesture, like expressing love and respect for the person you wronged. It's important to follow through on your offer of repair and demonstrate through your actions that you are committed to changing your behavior in the future.

By considering these elements, you can craft a sincere and effective apology that helps repair damage and strengthen relationships. There are more tips on apologies in the TED talk, "The best way to apologize (according to science)" https://lnkd.in/gK6t5VQP

Yemini v Twitter International Co

The Federal Court of Australia has handed down a useful and important ruling in the case of Yemini v Twitter International Company.

The written reasons are short, but are likely to have a long-lasting impact on running defamation cases against social media platforms.

Avraham Yemini is an Australian-based journalist for the Canadian news and opinion website, Rebel News.

He filed an originating application seeking an order under r 7.22 of the Federal Court Rules 2011 (Cth) for preliminary discovery by Twitter International Company and Twitter Inc, the corporate entities through which the American microblogging and social networking service ‘Twitter’ is principally operated.

Mr Yemini sought production of documents that would help him identify an anonymous person or persons who published allegedly defamatory content about Mr Yemini on the Twitter platform, so that he could then commence proceedings against that person or persons.

The Twitter handle was @PRGuy17.

The evidence supporting Mr Yemini’s application set out the bases on which he believed that one or both of the Twitter entities had information about the identity of the anonymous Twitter user and the attempts Mr Yemini had made to identify the anonymous user to date.

The application for preliminary discovery, under r 7.22 of the Rules, was based on a cause of action in defamation.

An application for preliminary discovery under r 7.22 of the Rules is a proceeding in which the Federal Court of Australia has jurisdiction.

On the basis of the affidavit filed in support of the application for preliminary discovery, the Judge was satisfied Mr Yemini had a prima facie case for the production of the documents he sought.

An order granting leave for Mr Yemini to effect service on the prospective respondents via international registered post was made.

Fairfax Media Publications Pty Ltd v Voller

Fairfax Media Publications Pty Ltd v Voller was a case decided by the High Court in 2021.

The case concerned whether or not a newspaper publisher could be liable for defamation where the article complained of was published on an online platform that was later taken down.

The court held that, where an article is published on an online platform and then taken down, the publisher may still be liable for defamation if it can be shown that they knew or ought to have known that the article would be accessible to readers in Australia.

This is because, even though the article is no longer available on the original platform, it may still be accessible to readers through other means (e.g. through search engines).

This decision has important implications for media organisations that publish content online, as it means that they need to be careful about what they publish and take prompt action to remove anything that could be defamatory.

It also highlights the importance of ensuring that articles are not published on platforms where they can be easily copied and distributed (e.g. social media).

This case serves as a reminder that defamation law still applies to content published online, even if it is later taken down. Media organisations need to be aware of this and take care to avoid publishing anything that could be defamatory.