Australian YouTuber Jordan Shanks revealed this week he had been threatened with defamation action by Clive Palmer. Mr Shanks, also known by his username FriendlyJordies, said Mr Palmer was threatening to sue him for $500,000 in damages after he referred to the businessman and politician as a “nutty turd” and "crackpot", among other terms.
The Australian National University (ANU) College of Law lecturer and communications law expert Brett Walker pinpoints five things to know about the case.
- Digital is no defence. Defamation law in Australia applies with equal force to social media and other digital forms of communication as it does to traditional media, such as television, radio and newspapers. A key difference is that journalists have editors and are trained in the perils of defamation law, whereas bloggers, vloggers and other new media users generally lack training in the perils of defamation law and are therefore more likely to be tripped up.
- There is precedent. A large body of cases exists in which people have been successfully sued for defamation for content on social media, so this is not really a test case. Earlier this year, we examined how Northern Territory youth detainee Dylan Voller sued several media outlets for defamatory posts made by Facebook users in 2016 and 2017 on the media companies’ pages.
- Legal action intensifies attention. An interesting aspect of this case is that Mr Palmer’s attempt to silence the vlogger and secure an apology has triggered what we lawyers and PR types call the “oxygen effect”, or in more popular parlance,the "Streisand effect". That is, it has given mainstream exposure to a YouTube video that would otherwise have had fewer views. Since the story broke, Mr Shanks’s satirical video response has received more than 620,000 views and generated support from vloggers and subscribers. This is a risk that defamation lawyers always advise clients about – that is, you may make things worse by threatening or commencing defamation proceedings.
- Testing reputational damage. The key legal issue here is whether the comments made in the YouTube video would make the reasonable person think less of Mr Palmer and thereby damage his reputation (the key test in defamation law). The web and the mainstream media airwaves are full of satirical articles and videos about politicians, business people and celebrities. The reasonable person, as determined by a court, will generally realise that a comment such as “dense Humpty Dumpty” is satirical and/or flippant.
As such, people will not really think less of Mr Palmer due to these remarks alone. Being offensive and rude – including commenting on someone’s appearance, body shape or size – does not ground an action in defamation because it does not go to a person’s character and reputation. This is to be contrasted with the situation where someone is, for example, called a thief or a rapist.
- And the likely outcome? The bottom line is that I will be extremely surprised if Mr Palmer’s lawyers follow through with legal proceedings.