Think before you speak, think before you tweet –social media and defamation

While most of us are posting mundane Facebook statuses about what we had for breakfast, or tweeting about our reactions to ‘The Bachelor’ (or is that just me?), Andrew Farley was doing a whole lot more last year, according to a judgment published only recently, but handed down in November 2013 in the District Court of NSW.

Farley posted a “number of defamatory comments” via social media platforms Facebook and Twitter regarding Orange High School teacher Christine Mickle, based on a belief that she had something to do with his father, also a teacher, leaving the school. Judge Michael Elkaim ruled that there was absolutely no evidence to substantiate that belief. While SA teenager Christopher Cross had a run-in with criminal defamation laws in 2009 (see our post here), the Farley case is believed to be the first civil defamation case for material on social media to go to full trial. Judge Elkaim ordered Farley to pay $85,000 in compensatory damages and an additional $20,000 in aggravated damages. Aggravated damages were awarded because Farley ignored an initial letter from Mickle’s lawyers, only removing the comments and apologising after they wrote to him a second time, and because he amended his defence to argue that the comments posted were true, which was held to contradict the sincerity of his apology.

To be defamatory, material identifying an individual, containing something about that person that could lower or harm their reputation, must be published or communicated to a third party. The publication or communication of the defamatory material does not need to occur via a particular medium –so the general principles apply equally to anything written online.

The writer, publisher and distributor of the material, as well as anyone who forwards on or repeats it, can all be sued for defamation (so, if you retweet defamatory material, you’re not off the hook simply because you didn’t author it). Interestingly, Twitter’s terms of service contain terms that exclude its liability as a publisher or distributor for defamatory comments made on its site by others (see section 11C). Joshua Meggit, who sued Marieke Hardy and Twitter in 2012 for a tweet published by Hardy falsely identifying him as the author of a hate blog, allegedly dropped his case against Twitter for this reason (and settled his case against Hardy). However, Twitter’s terms of service would not bind a defamed person if that person does not have a Twitter account, and is not a user of the site. Twitter’s terms also state that all claims arising in connection with its services must be brought in California. We’re pondering how this would work in conjunction with the Australian High Court decision in Dow Jones v Gutnick. In 2002, this case effectively held that a person can sue for defamation in the jurisdictions where the third party reads the publication (and not just where the material is actually published or uploaded). This was already somewhat controversial at the time, but in the age of social media and

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where material can go viral in a matter of hours, it has perhaps an even more far-reaching impact.

A potentially relevant defence that a social media giant sued in Australia might seek to rely is that of ‘innocent dissemination’ (codified in the uniform defamation laws introduced across Australia in 2005, e.g. see section 32 of the Defamation Act 2005 (Vic)). If a defendant can prove that it is only “the operator of a communications system by means of which matter is transmitted, or made available, by another person over whom the operator has no effective control”, that it didn’t know the material was defamatory and that its lack of knowledge was not due to any negligence, it may be able to make out the defence. However, it will only apply up until the defendant is made aware of the defamatory material. After this time, it’s arguable that its role changes from a passive operator into a more active publisher. This was the case in Trkulja v Google Inc LLC & Anor (No 5) (see our post on this here) –once Google had been made aware of content falsely identifying Mr Trkulja as a criminal, and failed to take it down, it became liable for defamation from the time it gained awareness.

Legal issues such as defamation are not often top of mind when the cursor is hovering over the ‘tweet’ button. Social media may be instantaneous but it is not as short lived as we might hope. The Farley case serves as an illustration that our online actions can have a lasting ($105,000) real life impact.