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Defamation landscape changing as questions continue around what constitutes a ‘publisher’

While high-profile defamation cases such as Rebel Wilson and Geoffrey Rush dominate media coverage, ordinary Australians are increasingly turning to the courts to fight battles over their online reputations, a university survey has found.

The study by the Centre for Media Transition at the University of Technology Sydney (UTS), partly funded by News Corporation, found a majority of Australian defamation cases now involved online media and only 21% of actions between 2013 to 2017 involved public figures.

Of the 189 cases identified by the researchers over the five-year period, 16 cases involved Facebook posts, 20 were over e-mails, four involved tweets and two concerned text messages. The survey also identified 609 court decisions relating to the 198 cases.

“The proportion of digital cases – arising from publication in social media, websites, email and messaging – has increased substantially, from just over 17% in 2007 to more than 53% in 2017,” said co-director of the Centre for Media Transition Professor Derek Wilding.

“The landscape for legal disputes around reputation is changing, as the question ‘who is a publisher’ continues to evolve.”

Notably, the survey found 37 of the cases involved websites such as blogs and independent publishers.

Wilding said the study highlighted the growing influence of social platforms and websites not affiliated with media companies as the source of legal disputes.

“As the law evolves, we see publishers – whether big or small – caught up in many protracted disputes,” Wilding said. “This chain of litigation requires a major commitment of time and resources from plaintiffs and publishers alike.”

Unsurprisingly, NSW remains the defamation capital of Australia, with more matters reaching a conclusion than the rest of the country combined.

Co-director of the centre, a joint venture between UTS Law and the Faculty of Arts and Social Sciences, Professor Peter Fray, added: “This study prompts us to think about the conditions for free expression in this country.

“Developments in technology and user expectations provide many of us with the opportunity to publish our views. There must be a role for public policy in moving us away from costly and time-consuming legal disputes.”

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