Have you ever left a bad review online?
Do you express yourself on social media or leave shit-stir posts on forums?
Are you a blogger or memoir writer who’s shared a horrible experience?
Perhaps you’re a reporter exposing the truth or a comedian poking fun?
Chances are you answered yes to one or more of the above. Most of us leave a footprint online. It’s the age of the internet. Unfortunately, our words can offend. Sometimes the offence is intentional and sometimes not.
If you post online, it’s inevitable one day an individual or business will claim you defamed them and threaten legal action if you don’t comply with their demands—retract your words, or else. Consider a threat to bring in a lawyer over negative statements a rite of passage.
After decades of blogging on and off, I’ve hit another first in my writing career. My very first defamation accusation. What a milestone! I’m a bona fide writer now. Woohoo! Bring out the champagne.
Don’t get too excited; I won’t be sharing the dirty details. At least not yet. There is certainly enough drama to write a story. I’m a tease, I know.
The defamation accusation turned the clogs in my head as I stared at my screen in disbelief. Really defamation? Did I really break the law? Is this lovely individual for real? All I did was write about an awful event that happened to me.
Down the legal rabbit hole, I go. Nothing eases the mind like knowledge. I love research anyway. Maybe it’s a writer thing? Most of us love reading up on random subjects. Our minds are like junk drawers filled with random crap.
I want to stress, although it’s obvious, I missed my calling in life and I’m no lawyer. Please don’t substitute my opinions for real legal advice. Laws vary from country to country, and I come from an Australian point of view.
In saying that, from what I understand, democracies share the same basic principles when it comes to defamation. I’ll stick with the basics.
What is defamation?
According to merriam-webster.com (dictionary), defamation is
Communication to third parties of false statements about a person that injure the reputation of or deter others from associating with that person, see also libel, slander.
“False statements”, or lies, is the key to defamation. The truth acts like kryptonite and will shoot any legal claim down. Sometimes the truth hurts. The truth can be mean. Suck it up, buttercup.
Be aware people can tell the truth and still be successfully sued. Proven truth is needed. In other words, evidence. Your word alone is considered hearsay. Think of a sexual assault case. The victim’s word alone isn’t usually enough to convict a perpetrator.
In my “defamation accusation” case, I have text messages and emails to back my “defamatory” statements. My claims are easy to prove to be substantially true. Had I lied in my post, I’d be up Brown Creek without a paddle. And fair enough. Deliberately lying unfairly hurts businesses and people. It’s malicious and against the law.
Defences Against Defamation
Sometimes we can write things that aren’t necessarily facts but believe our words are true. It can be muddy but if you can show evidence why you believe something, legally you’re probably going to be alright. Think of all the news articles that get their facts wrong. The best remedy is to write a retraction or withdraw the content.
Many people, arguably most people, who threaten to sue for defamation don’t understand what defamation actually is. Nasty or negative views don’t necessarily mean statements are defamatory in a legal sense.
On the contrary, holding an unsavoury opinion isn’t against the law.
For example, calling someone an “arse wipe” is considered an opinion, regardless if it’s fact or not. Name calling, while immature and sometimes funny, is just a humble opinion. Good thing too, or the courts would be backlogged for decades dealing with social media comments.
While opinions are generally a “get out of jail free” card in democracies, writers and creators need to be careful that their opinions and assumptions aren’t interpreted as fact. Sticking to the facts is advised for audience clarity. Let the audience draw their own conclusions based on the facts.
Assumptions masquerading as facts are false statements and are grounds to sue.
For example, I read a defamation case where a writer wrote a piece calling a man out as a paedophile. A serious assumption to publish. The man in question was never convicted of such crimes. The writer refused to retract their statements, believing their validity. The man won the defamation case against the writer and was paid damages.
Generally speaking, opinions are just that opinions, and we all have them. In the West, we have freedom of expression. No doubt there are exceptions where opinions have landed people in legal trouble. Hate speech comes to mind. Every country has its own freedom of speech limits.
This is why we see so many opinion disclaimers on content; YouTube, blogs, the news, and whatnot. Cover thy butt. Disclaimers aren’t foolproof, but they help make it clear the content is based on opinion rather than fact.
Like opinions, comedy and commentary are also defences against defamatory accusations.
In short, just because a business or individual doesn’t like what is being written or said about them, their service, or product, it doesn’t automatically make the words defamatory in a legal sense.
I’ve been threatened with legal action, now what?
Don’t panic.
Reddit forums are riddled with victims being threatened with legal action, some regularly — isn’t dealing with the general public grand? We live in a culture where businesses get antsy over less than perfect reviews and individuals get their egos hurt by any form of criticism.
Generally speaking, threatening to bring in a lawyer is a bullying tactic to shut people up. A temper tantrum. A bluff. Lawyers are expensive. But to play it safe —
Don’t respond. Don’t try to make it better or reason with them. Don’t defend yourself. As tempting as it may be, do not reply with some word bullets. Cease all forms of communication.
It’s not in your best interest to respond. Anything you say or write can be used against you. They closed the line of civil communication with the lawyer threat. Wait to hear from their probably nonexistent lawyer.
In the meantime, make sure you can back up your statements with evidence. If you can, relax. It’s not a defamation case. Withdrawing your words is your choice. The odds are you’re being bullied.
If the questionable content is an opinion, comedy, or commentary in nature, you should be fine to keep the content alive. Wait to hear from their lawyer.
If you tackled with a public figure or deep-pocketed business, be prepared to see your own lawyer for advice. The rich can afford to make an issue.
When to Abort Content
- You can’t back up your statements (hearsay is difficult to prove)
- There are falsehoods in your content
- You feel the demands are reasonable and you’ve had a change of heart
Being threatened with lawyers or accusations of defamation isn’t nice. The first time feels like a blow. A real “what the” moment. I honestly laughed. Defamation never crossed my mind, and my writers’ groups rarely discussed the matter.
By nature, I’m the type of person who questions everything, including my possible wrongdoings. Of course, everyone I spoke to was reassuring. “Ignore the shithead” was the consensus.
All the same, I fell down the legal rabbit hole and hold no regret. As a writer, it’s beyond valuable to have an understanding of defamation. Know your limitations within the law.
Knowledge is power.
As the saying goes — fool me once, shame on thee; fool me twice, shame on me.
I learnt there isn’t anything to fear if someone screams defamation and you’ve shared an honest opinion based on evidence. Comedy and commentary are also generally protected. Defamation is about false statements that damage a business or person’s reputation.
Even if you do defame, the vast majority of cases are settled out of court. Usually you’ll have to retract the published material, and there could be a request for acknowledgement in the form of a corrected update or a fake apology.
Being forced to pay damages is unlikely unless you actually defamed and refused to retract the defaming content. The process is long, grueling, and ridiculously expensive.
It should be noted that laws are complex and often change. My opinion is broad strokes. The truth is a shield.
In the end, I’m following my golden blogging rule —
DON’T FEED THE TROLLS!
These are the writer’s opinions based on legal research and should not substitute legal advice from a lawyer.
THE WRITING ASYLUM 
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