Not-for-profits (NFP) are in a particularly vulnerable position when it comes to online comments. Social media allows keyboard warriors to comment even when it undermines the good work of the NFP organisation.
When those comments are defamatory, NFP are treated differently to companies with over 10 employees regardless of their size meaning they may be able to bring a defamation case.
How are NFP treated differently to other companies for the purpose of defamation?
In defamation law, NFP (no matter how many people they employ) and companies with under 10 employees are able to sue for defamation – this is unlike normal companies with over 10 employees.
How long do you have to bring an action?
One year from when the article was published.
A comment on an online article or post can be defamatory
If a defamatory statement is in a comment on another article or post, it can still be considered defamation, unless it falls within the defence of “fair comment”.
A defence of fair comment is established when:
- the publication is a comment as opposed to a statement of fact;
- the comment is based on facts which are substantially true;
- the comment relates to a matter of public interest; and
- the comment is the honest expression of the commentator’s real view.
Truth is a defence
Truth is an absolute defence to defamation.
For example, consider when someone publishes online that a sportsperson takes illicit drugs. If that sportsperson has taken illicit drugs even once, depending on the wording of the article, the truth defence may apply and the comment not considered defamatory.
Conclusion
A defamatory comment or article has the capacity to undo much of the good work performed by a NFP and cause irreparable harm to their reputation.
Defamation laws are complex - if your organisation has been defamed online you should seek urgent legal advice.
Catherine Ballantyne regularly acts for not-for-profit organisations, including in instances of defamation.
