Courts are only just beginning to grapple with the application of defamation law to social media platforms like Twitter.

Hockey v Fairfax is only the second Australian case to reach final judgment in which damages have been awarded for defamatory tweets. Rolph (1)

Hockey v Fairfax raises some issues about the extent to which tweeters can be held liable for, or can rely upon, material generated by others to which they link – important issues of principle which need to be explored in subsequent cases.

The more interesting implication from Hockey v Fairfax is the legal risk posed by the use of social media by mainstream media outlets promoting their stories. – implications for MSM – large organisations.

  • Fairfax was ultimately held liable for the means used to promote the story, rather than the story itself: both the old-fashioned way (the posters outside newsagencies) and the new way (the tweets).
  • Both of these forms of promotion were necessarily brief. It was their brevity which heightened the risk of defamation.
  • They conveyed an allegation without the context or the qualifications of the long-form stories.
  • They were considered a separate publication

In broadcast policy terms the context and what it allows determines the tendency to breach or not. Brevity heightens the risk of breaching compliance because justification cannot be included.

Defamation law treats dissemination across different platforms as separate publications.
But there are differing legal views – Whitbourn (Age)

NSW Supreme Court Justice Lucy McCallum has previously considered whether Twitter should be regarded ‘as being in the nature of a billboard outside a newsagent, serving as an advertisement’. She concluded it couldn’t because ‘Twitter provides access to particular articles by sending a link to followers of the relevant Twitter account’. But Federal Court Justice Richard White said some readers may read the tweet ‘without going further’. Therefore he found the tweets separate and defamatory because they conveyed an allegation without context.

Maybe Pollies shouldn’t sue, after all they have parliamentary privilege to say what they like anyway.

Weisbrot (Press Council Chair) “This is particularly inappropriate since elected politicians can use the floor of parliament and the extraordinary protections of privilege to state their positions and defend their reputations”. (Christensen)

Rolph - Perhaps political reputations are best vindicated at the ballot box, rather than in the courtroom.

We mere mortals do not have that luxury or that soapbox. So what are the implications here for us?

The only other case of defamation against a tweet that included a judgement for damages was not related to politics, rather it was an ordinary person – A NSW teacher in 2012.
The case; In November 2012, a former high school student posted  defamatory comments on Twitter and Facebook about Ms Mickle, who took over his father's job on an acting basis after the senior teacher left in 2008 for health reasons. (Whitbourn SMH)

This case was compounded by the tweeter having been warned –

Judgment would ''draw a line in the sand for those who up until now have used social media to defame others to hurt them and think there are no consequences. If someone wants to continue to do it despite being warned, it is particularly appalling, as it was in this case”.

The decision is the first defamation case involving Twitter to go to trial.

But maybe this was the first - Liberal pollsters Mark Textor and Lynton Crosby's Federal Court case against former federal Labor MP Mike Kelly –

The tweet read: "always grate [sic] to hear moralising from Crosby, Textor, Steal and Gnash. The mob who introduced push polling to Aus."

Push polling involves the use of loaded questions to sway the outcome of a poll.
The founders of lobbying firm Crosby Textor responded with a lawsuit that claimed the tweet defamed them.
In February 2013, Dr Kelly lost a High Court bid to have the case thrown out on the basis that the Federal Court did not have jurisdiction.
In April this year, a judge urged the case to go to mediation and noted a number of personality-driven issues appeared to be involved.
In May 2013, the pollsters' lawyers said they would drop the case if Dr Kelly apologised and they proved true to their word.
The termination concludes four years of legal fighting that was sparked by a tweet in October 2011 (Inman SMH)

In another case, author Marieke Hardy settled in 2011 for erroneously ''naming and shaming'' a Melbourne man on Twitter as the author of a hate blog.

Defamation Law has always protected reputation more highly than it has protected free speech.

But as many legal experts have recently argued protection of reputation should be balanced by protecting freedom of speech and freedom of the press. Rolph (2)

Weisbrot; “Public figures in the US rarely pursue defamation actions because the law requires them to prove ‘actual malice’ on the part of the publisher. Similarly, defamation law has been reformed in the UK to accord with modern notions of robust free speech and the critical role of the media in holding politicians and the rich and powerful to account”. (Christensen Mumbrella)

Implications for Tweeps – the rest of us

The Hockey ruling highlights the different legal protections afforded social media users in different countries but there are still issues when it comes to ordinary people.

If another person has said or published something that has damaged you reputation, exposed you to ill feeling or ridicule, caused others to avoid you or think less of you, then they may be liable for defamation.

With Tweets brevity heightens the risk of defamation. It’s all about “context”, and a tweet is a much abbreviated context, 140 characters. (Rolph 1 & Hilden)

Hilden provides some very useful observations here;

  • Underlying facts exceed the 140 character limitations;
  • Twitter blurs the fact/opinion distinction;
  • Ambiguity on twitter is constant, therefore, dangerous;
  • A joke may be mistaken as fact;
  • Twitter users may be more careless about their tweets than if the context was more formal.

She even suggests that it would be useful if there were shorthand ways to indicate sentiment in tweets. My previous lament for the lack of, need for a sarcasm font is applicable here.

To Takeaway:

Who can be defamed and what is defamatory?

While a legal case may be fought about the problematic use of defamation law by politicians in order to bring Australia into alignment with the larger jurisdictions of the USA and UK, the dangers inherent in tweeting about an individual, small company, charity, not-for-profit, religious organisation remain.

Context, defence of truth/fact;

Brevity disallows a robust inclusion of information that may save a tweep from defamation, though NSW Justice Lucy McCallum argued that including a linked article provides protection. Justice White (Hockey case) didn’t agree. We could put this down to State differences versus Federal Court on defamation law. If the Hockey v Fairfax case had been run in NSW the tweets may not have been found to be defamatory because they were linked to the article.

Also as Mr Hockey found out, the court costs imposed may be substantial.

Risk assessment is needed with tweets – who is likely to litigate? How damaging is the statement? Does a linked article provide potential wiggle room? The Plaintiff gets to choose where a case is heard, not the defendant. So, when you tweet do not seek to “damage a person’s reputation” unduly. Perhaps argumentum ad hominem is not the way to go.

by Dr Sally
TV tragic, news junkie media PhD, Enviro Board and Director, human rights, hate injustice; dog lover wine lover Daughter of #farmer & #TradeUnionLeader @slsandpet

Whitbourn: Decision on The Age tweets shows pitfalls of social media Jul 1, 2015 -
Christensen: Mumbrella  Press Council Chair David Weisbrot calls for law reform in wake of Hockey defamation case, July 1st, 2015
Hockey to pay 85 per cent of his own costs Federal Court of Australia NSD 489, 491 & 492 of 2014 White J July 22, 2015
Rolph 1: Gazette of Law & Journalism July 2015
Dr David Rolph lectures in media law at the University of Sydney Law School and is the editor of the Sydney Law Review. He is the author of Reputation, Celebrity and Defamation Law (Ashgate 2008).
Rolph 2:

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