Interesting article by Bianca ONeill on FashionJournal.com.au about defamation and social media quoting our own Jonathan Xian!
Will the groundbreaking defamation case brought by Dolce & Gabbana change the landscape for call-out account creators?
The news about famed Instagram call-out account Diet Prada being sued has surely instilled fear in the hearts of the (often anonymous) admins of similar accounts overseas and back here at home – but for the accusers and their fans, it’s only going to add fuel to the corporate accountability fire.
But before we delve into the ramifications of such a ground-breaking legal stoush, here’s a little update in case you’re not an expert on viral social media accounts like Diet Prada.
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Earlier this year the 2.6 million-strong Instagram call-out account – known mostly for exposing allegations of everything from cultural appropriation to sexual harassment within the fashion industry – dropped another bombshell. Only this time, it wasn’t in the form of accusations against a noted fashion figure.
Instead, it was a post featuring its own newsworthy headline: that it was being sued by Italian fashion giant Dolce & Gabbana for defamation. Reports suggest the fashion label is seeking an astronomical figure of over $600 million euros in damages.
“With so much anti-Asian hate spreading in the US, it feels wrong to continue to remain silent about a lawsuit that threatens our freedom of speech,” its recent Instagram post began. “The lawsuit argues that we should be held responsible for lost revenue and other harm to Dolce & Gabbana and its co-founder Stefano Gabbana after we criticized their 2018 advertising campaign on Weibo for its stereotypical and sexist depiction of a Chinese woman, and revealed anti-Asian remarks originating from Gabbana’s Instagram account.”
“Shortly thereafter, in early 2019, the brand filed an action for defamation demanding that we pay damages in the amount of €3 million for Dolce & Gabbana and €1 million for Stefano Gabbana… Having cultivated Diet Prada as a platform where we can denounce racism, amplify stories from the larger BIPOC community, and hold the fashion industry to a higher ethical standard, has been one of the most rewarding experiences thus far and our only hope is to protect that.
Call-out Instagram accounts like Diet Prada have seen their share of controversy over the last few years, even before this latest legal challenge. On one hand they can provide important checks and balances when it comes to questionable practices within creative industries, and deliver reportage on stories that often wouldn’t make it to print among the more mainstream media outlets.
On the other hand, some critics have accused these accounts of bullying, while also feeding into a form of misplaced ‘cancel culture’ that doesn’t allow a company or celebrity to right their wrongs before being ‘cancelled’. No matter which side of the fence you sit on, there’s no doubt that this case will set a precedent across the globe, and any positive outcome for Dolce & Gabbana will likely strike fear into the minds of moderators running their own call-out accounts.
Local Instagram creator @esteelaundry has had its own headline-grabbing public tousles with well-known brands. It’s quite breathtaking to watch, as a consumer – a much-loved mega brand being swiftly and efficiently brought to task via an anonymous collective on Instagram – particularly considering our low expectations when it comes to big companies making big changes behind closed doors. (Or, in the great tradition of corporate stuff ups, waiting long enough for the news cycle to turn in the hope that the problem will go away.)
But it’s also important to question the ethics and legality behind publishing accusations from ‘anonymous’ DMs to an account run by an anonymous collective, as well as the level of fact-checking done before whacking a screenshot up on stories without seeking comment from the accused party.
Many journalists have mused over the identity of Estee Laundry, and the most information it’s ever given up was in an interview with The Cut back in 2019. “It’s a group of people located around the world,” the anonymous co-founder said. “There are three co-founders. We think of ourselves as a collective. We’re all friends; we knew each other before we started the account. All of us work full-time in the beauty industry in some capacity. This is a passion project we do in our free time.
In Australia, anonymous accounts like Estee Laundry have been the subject of speculation regarding litigious brands and celebrities. Just last month, local celebrity and influencer satire account Celeb Spellcheck, which lampoons spelling errors and other gaffes from celebrities and influencers alike, deleted hundreds of posts after rumours circulated that the person or people behind it were about to be unmasked, or that they were subject to legal threats – a claim the author/s of the account have since denied.
Since then, after a brief return, the mysterious insider – who previously admitted to being based in Melbourne and working in public relaitons, but nothing more – shut shop for good, citing that the account had become “too big, too powerful and too time consuming for me to enjoy running it anymore”. These days, it simply posts old celebrity images from the ’90s and ’00s, commentary (and litigation) free.
And while Estee Laundry and Celeb Spellcheck are at different ends of the spectrum – one acting as an industry watchdog, and the other as comedic relief – they share a common concern: exactly how legal is it to publish accusatory or inflammatory information to millions of followers?
Jonathan Xian, a solicitor at Sanicki Lawyers, an entertainment-focused law practice that specialises in defamation law, tells me that, hypothetically, a similar case to the Diet Prada vs Dolce Gabbana challenge in Australia would face many difficulties. The iron-clad defence to accusations of defamation is that the posts represent ‘substantial truth’, or alternatively that the posts reflect an ‘honest opinion’ – two defences Diet Prada appears to have on its side – but that doesn’t mean creators should see social media as a consequence-free publishing environment.
“We have acted in many matters involving social media publications,” says Xian. “In most cases, people do not realise that social media publications carry the same weight, in the eyes of the law of defamation, as ‘traditional’ forms of publication, such as newspaper or television.”
“Facebook and Instagram are often seen as a ‘free-for-all’ environment, in which call-out culture prevails and freedom of speech is taken for granted. In reality, due to the ease with which information spreads on social media, defamatory publications made on social media can have far-reaching and highly damaging consequences, which should not be taken lightly.”
Sure, freedom of speech is the beloved catch cry of internet warriors and Instagram influencers alike, but where does it lead? Do the companies and their employees who run afoul of disgruntled ex-employees and social media anti-fans actually learn their lesson and instigate change? Or does it simply fade into the background of yesterday’s news?
Australian call-out account Estee Laundry tells me that its revelations have not only encouraged large beauty companies to respond, but also to change for the better. The anonymous collective tells me that accused beauty brands have “made major changes” after it reported alleged claims of “racism, sexism and inappropriate conduct”.
Estee Laundry also refutes the idea that the accuracy or credibility of its work could be called into question, explaining that not only were some allegations published on the record, but also insisting that it personally takes the time to do the research.
“We ask for receipts (in the form of emails, DMs or other forms of communication)… allegations came from past and current employees, some of whom were happy to go on record to mainstream media outlets.
“It’s harder for allegations like bullying and racism where they’re casual and intrinsic, but we give victims the space to share their stories. We do validate that these stories are coming from individuals who’ve worked for or have professional ties with these entities.”
When asked whether the Diet Prada legal spat will affect the way it runs its account, Estee Laundry’s spokesperson seemed unperturbed, and noted that while coverage on mainstream media is often intrinsically tied to the lure of advertisers, accounts like Estee Laundry are left to fill the accountability gap.
“We think it’s important to have independent commentators to move the beauty and fashion industries forward. Mainstream channels don’t criticise their sponsors/advertisers because their revenue depends on it. Our aim is to make the beauty industry more inclusive by highlighting issues like racism, cultural appropriation, sustainability and bullying.”
Meanwhile, over at Diet Prada, its vigorous reporting of the appointment of then-new Teen Vogue editor, Alexi McCammond – who discovered the ire of the internet after old anti-Asian tweets re-emerged upon her appointment – whipped up enough of a frenzy amongst its followers to play at least some part in her exit, less than two weeks later.
The conclusion? Beware the new world (internet) order: call-out accounts are now king, and there may not be any legal way to silence them. Oh, and delete your old Tweets, for God’s sake.
Find out more about call-out culture here.