Introduction
People and organizations rely on their reputations to sell their products, plans, ideas, and personalities in the current business and corporate world. With the advancement in the communication sector, more marketing platforms have been created, with social media being the most used. Social media demands great proficiency in communication for one to market their products. Further, the brand reputation is highly regarded when marketing on this platform. Thus, those marketers must be great communicators with higher credibility and integrity who have an image or brand to protect.
With nations having freedom of expression, defamation laws aim to balance the freedom in the community between subjects. To report defamation remarks or actions, one must present convincing evidence such as a publication (Hall‐Lipsy & Malanga, 2017, p. 1624; Ng et al., 2019; Pearson & Polden, 2020, p. 78). This publication must address the third party, with the plaintiff proving that the message addressed can identify him through the image or description given in those defamation actions (Griffen, 2017, p. 10). Defamation acts are actionable because they affect people’s lifestyles, image, or reputation, which influences social life.
Defamation in other nations is considered a civil matter which calls for civil action to resolve them. With many belittling remarks reported on various media channels, most focus has been shifted to social media platforms (South Australia Legislation, 2021). However, the action is not considered defamatory if what is reported is true despite ruining the plaintiffs’ reputation, as depicted in Kemsley v Foot (Bosland, 2019), with the rule also applying in Norway. Clear evidence must be presented before the jury, which will decide on the extent of defamation and order appropriate compensation.
Defamation Laws in Australia and Norway
In Australia, defamation refers to the publication of information and materials that are harmful to the reputation of another individual. Under the country’s Uniform Defamation Law (UDL), this includes any written materials, such as those published in magazines, social media newsreels, pictures, as well as spoken statements (Pearson & Leighton-Jackson, 2020). This means that professional communicators in Australia can be potentially liable for publishing material that:
- Exposes an individual claiming to be defamed to induce hatred, ridicule, and contempt by the audience of the materials;
- Lowers the individual claiming to be defamed in the “estimation of a right-thinking member of society” (Breit, 2011, p. 3);
- Causes the individual claiming to be defamed to be excluded and avoided without the presence of moral discredit on their part.
In Norway, defamation is no longer considered a matter of penal law. Beginning from October 1, 2015, it is instead regulated in the legislation that deals with compensation for damages, which is covered in civil law. In some instances, acts of defamation can be penalized as a violation of privacy under Section 267 of the Penal Code (“Defamation laws in Norway,” 2022). Notably, the provisions of the Norwegian Penal Code are only concerned with provisions that prohibit insults and defamation to government officials and institutions, with Sections 246 and 247 expressing that imprisonment may range between six months to a year (Witting, 2021). Norwegian law is clear about the fact that the country enjoys a free press and values independence in the representation of different issues and perspectives.
Effects of Defamation Law Professional Communicators Regards Social Media Marketing and Press
Today, the government of Australia has been placing more attention on establishing measures making social media companies from publishing defamatory materials on their platforms. It is expected that such platforms will have stronger positions on defamatory speech, which means that professional communicators operating in Social Media Marketing (SMM) must be more aware of their speech. Besides, Reuters reported the statement that social media platforms have been “getting away with not taking any responsibility” for the content that is being published (Kelly, 2021, para. 3). Moreover, the strengthening of measures of controlling social media platforms extends to their treatment as publishers when there are posts of defamatory comments.
In the context mentioned above, concerns arise regarding freedom of speech in SMM. With the specific law considering social media sites as publishers, increased attention is placed on the issue, making it so that professional communicators working in the online sphere get more restricted in their speech, which is not an issue in Norway. In order not to fall victims to the abuse of defamation laws under the stricter legislation covering social media marketing, professional communicators may restrict their speech and possibly avoid using particular language that may be questioned. It is projected that the communicators will have to appeal to the protection of their freedom of speech under Australian law depending on the strictness of measures to which the government may subject social media platforms.
The same challenges have emerged in the press, which is highly present in the online environment. The High Court of Australia ruled that news sites are to be considered “publishers” of defamatory comments that the public makes on their social media pages and are to be liable for them (Karp, 2021). This resulted in such platforms as CNN blocking its Australian audience from accessing their Facebook page altogether (Roth, 2016). This shows that even though the press may not post any defamatory content per se when the platforms allow for engagement with their audiences, they may be liable for defamatory speech that their subscribers or followers post (Talwar et al., 2020). In contrast to Norwegian law on defamation, Australian legislators are becoming increasingly stricter with the regulation of various types of speech on online platforms.
Norwegian law allows professional communicators to be more flexible in the way in which they transfer information on social media, which is a significant difference from the Australian approach. Specifically, the Norwegian Supreme Court ruled that freedom of expression is a fundamental principle for mass media communication, with the need for communicators to expose the abuses of public authority and other unlawful acts committed by individuals in power. Because censorship is non-existent in the country and very few laws may restrict online communication, the defamation law has little impact on professional communicators’ social media marketing efforts.
Due to the focus of the Norwegian legislation on freedom of speech concepts, the contributions of various types of communication professionals who work in the online sphere are highly valued. The overall shift toward an increasingly multicultural and diverse society, the impact of digitalization and engagement in online media, as well as the established media structures have led to the expansion of opportunities to express opinions. In SMM specifically, the reporting of information and opinions is affected by bias, which is used for praising the products or services they promote. Issues arise when the SMM language is accused of being deceitful when the product or service does not meet the target audience’s expectations (Hollier, 2018). This means that reporting information must be accurate to avoid further accusations by the audience of the SMM messages. Nevertheless, there are few grounds for the receivers of SMM messages to claim defamation in Norway because it does not align with the laws covering social media advertising.
When it comes to the press, which has gradually entered the social media environment, Norway represents one of the open media environments. Freedom of expression, freedom to use media, and the right to access government information, all of which are guaranteed by Article 100 of the country’s Constitution, offer the press abundant opportunities to communicate their objectives (“Norway’s Constitution of 1814,” 2022). Even though the expression may be controversial, offensive, or shocking, it does not mean they are defamatory. Notably, the legislation on defamation is often misused as the press gets accused of defamatory messages. To prove defamation, it is necessary to show negligence or intent in the messaging, which is hard to prove due to Norway’s freedom of information focus.
Conclusion
Defamation cases have been reported in many nations, with each nation considering the cases differently. Communication plays a critical role in these cases, especially in providing evidence and reporting the issue to the public. In contrast to Norway, which has decriminalized defamation, Australian legislators have become increasingly concerned with defamatory speech posted online, with platforms becoming “publishers” of defamatory information posted by third parties. In Norway, the laws on defamation have become more lenient to protect the freedom of speech of communicators who engage in the online environment.
List of References
Breit, R. (2011). Uniform defamation law in Australia: Moving towards a more ‘reasonable’ privilege.
Defamation laws in Norway. (2022).
Hall‐Lipsy, E., & Malanga, S. (2017). Defamation lawsuits: Academic sword or shield? EMBO Molecular Medicine, 9(12), 1623-1625.
Kelly, L. (2021). Australia mulls measures making social media giants responsible for defamatory postings. Reuters.
Ng, F., Charles, A., Pollock, K., Rennick-Egglestone, S., Cuijpers, P., Gillard, S., Van der Krieke, L., Bongaardt, R., Pomberth, S., Repper, J., Roe, J., Llewellyn-Beardsley, J., Yeo, C., Hui, A., Hare-Duke, L., Manley, D., & Slade, M. (2019). The mechanisms and processes of connection: Developing a causal chain model capturing impacts of receiving recorded mental health recovery narratives. BMC Psychiatry, 19(1).
Pearson, M., & Leighton-Jackson, V. (2020). Privacy and defamation in Australia – a post-colonial tango. Comparative Privacy and Defamation, 381-398. Web.
Pearson, M., & Polden, M. (2020). The journalist’s guide to media law: A handbook for communicators in a digital world. Routledge.
Roth, E. (2021). Australian PM proposes defamation laws forcing social platforms to unmask trolls. The Verge.
Talwar, S., Dhir, A., Singh, D., Virk, G. S., & Salo, J. (2020). Sharing of fake news on social media: Application of the honeycomb framework and the third-person effect hypothesis. Journal of Retailing and Consumer Services, 57, 102197.
Witting, C. (2021). 21. Defences and remedies in defamation. Street on Torts, 534-570. Web.
List of Cases Cited
Bosland, J. (2019). Kemsley V Foot (1952). In D. Rolph (Ed.) Landmark cases in Defamation Law. Hart Publishing.
Karp, P. (2021). High court rules Australian media companies can be liable for defamatory comments posted on Facebook pages. The Guardian.
List of Legislation Cited
Griffen, S. (2017). Defamation and Insult Laws in the OSCE Region: A Comparative Study. Web.
Norway’s Constitution of 1814 with Amendments through 2014. (2022). Web.
South Australia Legislation. (2021). Defamation Act 2005. Web.