Bitter tweet – defamation in social media

140 defamatory characters posted in the Twitter-sphere could cost tens of thousands of dollars in damages, the New South Wales District Court has held. The case reignites the complexities of defamation law in a world where everyone is a publisher and information is disseminated across the globe at the click of a button.

In the recently handed down court decision of Mickle v Farley, 20 year old Andrew Farley was sued by Ms Christine Mickle, a highly-regarded music teacher who taught at the same school. Mr Farley believed Ms Mickle was responsible for his father (the previous head teacher of music) leaving the school, and posted multiple allegations on both Twitter and Facebook. The comments were false, as his father had left the school in 2008 “in order to attend to personal issues.” The suggestion that she was responsible for the harm or ill-health of the father caused distress to Ms Mickle, who subsequently took a year of sick leave.

The case itself is unremarkable in regards to the current state of defamation law in Australia except that it’s the first Twitter judgement. Judge Elkaim awarded $85,000 in compensatory damages. He commented:

“when defamatory publications are made on social media it is common knowledge that they spread. 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.”

Judge Elkaim additionally awarded $20,000 for aggravated damages for Mr Farley’s uncooperative behaviour. The case shows the accountability of social media users for their actions, even when Mr Farley only had a mere 60 Twitter followers and 50 Facebook friends.

The Social Media Legal Landscape in Australia:

Photo by Rosaura Ochoa used under CC BY 2.0.

Whilst Andrew Farley’s case was the first Twitter judgement in Australia, it’s not the first to hit the courts. In 2012 music reviewer Joshua Meggitt sued Marieke Hardy and Twitter, but settled out of court. This otherwise unremarkable case demonstrated the law responding to technological change.

Companies too must, of course, be careful as there is a history of liability for the failure to remove posts on their Facebook pages written by others. This is important, as the control and responsibility of the page rests on the company – even for content which it did not produce.  Even Google couldn’t escape publisher liability when the search engine failed to remove defamatory search results after several requests from a Mr Trkulja, who was defamed and Google found to be liable in late 2012.

Defamation Law in Australia and Beyond:

As defamation law us is usually more concerned about where content is downloaded, rather than uploaded, the internet has made the law more complex. As content can be viewed or downloaded anywhere, amateur and professional writers can now be exposed to defamation laws across the globe. In Australia, a person can sue for defamation in the state or territory where his reputation is established, even when the content was published overseas. This pick-and-choose system provides advantages for people who believe they’ve been defamed. By bringing an action in countries with stricter freedom of speech laws increase the chances the material will be held defamatory, whilst it’s lower in countries which strongly promote free speech. In reality, most potentially defamatory comments never eventuate into law suits because of the cost and time to do so, and many won’t be across multiple jurisdictions.

Looking Forward:

Defamation has always been a topical issue, but as the law and evolves to meeting the challenges of the social media age, it has become more relevant to everyday people. There is a misconception that social media is treated differently from traditional forms of media. In reality, this isn’t entirely true, and whilst people may let their guard down with what they say on their Facebook page, it can have unintended ramifications. Judge Elkaim’s words should be a warning to those with a propensity for hot-headed tweeting, or perhaps even a careless fib. For the young Andrew Farley, he found himself owing more than $100,000 plus significant legal costs in circumstances where he was unlikely to have considered this a likely outcome at the time of his tweeting.