Defamed in 140 characters or less

Published 1/03/2016

By Ace Pecenpetelovski

There’s the old adage which says that ‘Words are free. It’s how you use them, that may cost you’.

So how relevant is this saying today? After all, we live in a world which is saturated by technology, often doing most of the thinking and talking for us. Words have now been replaced with acronyms, emoji’s, status updates, selfies and of course, tweets. It’s everywhere. It’s hard not to get caught up in it all. Besides, YOLO!

With social media changing the rules on how we communicate; are words still as costly as they once were? Recent defamation cases in Australia and around the world indicate they are. Actually, it doesn’t take much to pay a hefty price. In fact, all it can take is 140 characters.

School student defames teacher on Twitter

This was evident in the landmark NSW District Court case of Mickle v Farley[1] . The first of its kind, ex-high school student Andrew Farley was ordered to pay $105,000 in compensatory and aggravated damages for defaming his former teacher, Christine Mickle, on Twitter. Now that’s one pricey tweet – $750 per character to be exact.

There’s no denying the continuing power and growth of social media and cases like this appearing before the courts in future are just like taxes; inevitable. In order to protect yourself from the potential pitfalls of social media, it’s necessary to dissect the District Court’s judgement in this matter and its impact, if any, on current defamation laws.

To be successful in a claim for defamation, a plaintiff must prove the following:

That the communication has been published to a third person;
That the communication identifies (or is about) the plaintiff; and
That the communication is defamatory.

For more information about these requirements see Arts Law’s Defamation Law information sheet.

The fundamental question for the court to answer here was whether what it means to publish extended to social media. The answer was simple: Yes, it does.

Judge Elkaim said, “When defamatory publications are made on social media it is common knowledge that they spread”. He went on further to say, “They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication”.

So whilst the case of Mickle v Farley was the first defamation case involving Twitter to proceed to trial and cases involving social media are somewhat new, the old existing defamation principles still apply.

Joe Hockey defamation claim against Fairfax

This was evident in Former Treasurer, Joe Hockey’s, successful defamation claim against Fairfax Media, over two tweets from The Age’s Twitter account in May 2014. Mr Hockey was awarded an $80,000 payout and is the first, but certainly won’t be the last, politician in Australia to have a successful defamation action over comments made on Twitter.

The words in question in the case, “Treasurer for Sale”, were not only published on Twitter, but also on advertising placards and as a headline of a news article published in two Fairfax owned newspapers, including the Sydney Morning Herald. What’s pertinent in the Federal Court’s finding was that it was only the tweets and advertising placard, for which he was awarded $120,00, that were found to be defamatory; not the news articles.

What is it about social media and Twitter in particular that led to a successful defamation claim for Mr Hockey? The court found that although the same words were used on the news article headline and in the tweets, the headline was not defamatory as it was accompanied with a separate analysis by the publication’s chief political reporter. When read in the context of the news article, the headline was not defamatory of Mr Hockey.

The tweet on the other hand was considered by Justice White to take on a different meaning when published as a lone tweet. The context provided by the article was missing. Although the tweet included a link to the full news article, Justice White found that many readers would see the tweet without proceeding to read the complete article.

Whilst the recent case law may indicate Australian tweeters are forced to be less trigger happy when tweeting or re-tweeting, cases overseas also show that tweeters worldwide should be warned. This is not surprising considering social media is a global force, with new technology and apps introduced on a daily basis. Over 10 million Turkish Twitter users were disconnected from Twitter in March 2014 after the government obtained court orders under defamation proceedings, to stop tweets linking corruption allegations to the country’s Prime Minister Recep Tayyip Erdogan.

It’s a subject matter definitely worthy of ‘trending’.

Protecting yourself

So what do these milestone cases and the application of defamation laws to social media mean for the 14 million Facebook and almost 3 million Twitter users in Australia?[2] It means that anyone is at risk of having a defamation claim brought against them for comments posted on social media.

Yes, even you!

You may not be a qualified journalist or employed by a media company, but your words still reach an audience. A global one at that! ‘Re-tweeting’ and ‘sharing’ can also leave social media users vulnerable to legal proceedings.

What should you do if you find yourself threatened with a defamation claim after posting something on social media? In addition to the plaintiff proving the 3 elements outlined above, you have defences available to you. In short, you must prove:

The comment was your honest opinion based on actual material (not a statement of fact) and it was published because you considered it a matter of public opinion;
The comment was substantially true, proven by admissible evidence in court such as original documentation and/or credible witnesses; or
You had a ‘qualified privilege’, be it a legal, social or moral duty to communicate your comment.

However taking all that in account, a good place to start is to remove the offending tweet or status and offer a good old fashioned apology. It’s worth a shot and as the cases discussed above show, a much smaller price to pay.

So it seems the old adage I started this article with still rings true today and will continue to do so in the future. How you use your words can cost you. So remember #thinkb4utweet.

Ace Pecenpetelovski is a qualified Lawyer and is currently the Content Discovery Metadata Lead with the Special Broadcasting Service (SBS) Content Division.

[1] [2013] NSWDC 295

[2] Social Media Statistics Australia – May 2015 – www.socialmedianews.com.au