By Adam Fraser
This week Joe Hockey was awarded $200,000 in his defamation proceedings against Fairfax media. In itself, not particularly newsworthy and one wouldn’t think a topic for a social media blog.
However, digging under the surface of the headline award were some very interesting dynamics.
Defamation is broadly defined as “the action of damaging the good reputation of someone; slander or libel”. Joe Hockey felt that an article headlined “Treasurer for Sale” defamed him by suggesting he was corrupt and accepted bribes paid to influence his decisions as Treasurer.
Without getting too legal and technical, the judge found that the news article as a whole did NOT defame Mr Hockey. However a headline on a poster, and two tweets DID defame him (the two offending tweets were “Treasurer Hockey for Sale” and “Treasurer for Sale: Joe Hockey Offers Privileged Access”).
For emphasis: ‘whole article read in context’ – no issue; ‘tweeted headline’ – defamation. This has major implications for anyone publishing on social media, in particularly of course, Twitter.
In the final judgment, the judge accepted the Hockey argument that “a tweet should be regarded as a discrete publication and its defamatory meaning determined separately”
That beautifully written headline in a tweet – designed to get a user to click through – now takes on added significance. It may be defamatory in its own right even if, when read in the context of an entire article, it isn’t defamatory.
What does this mean for the legal environment in an era of social media and anyone being capable of being a publisher? Some thoughts from legal experts and industry observers:
Matthew Lewis, Senior Media Law Barrister via SMH.com.au:
“We could be in danger of seeing an influx of social media cases which are trivial … and which are completely disproportionate to what’s at stake,”
Geoff Holland, a media law expert at the University of Technology, Sydney via SMH.com.au
“People can be liable for what they retweet, so it’s not just a case of liability of the person who has made the original tweet”
Giri Sivaraman and Nita Green of Maurice Blackburn via a Crikey.com oped piece:
“The fallout from Hockey’s “win” will probably make editors think twice about the headlines they plaster on posters and the 140 characters they use to entice readers to click on a link, but it shouldn’t change the stakes for ordinary social media users who are freely disseminating their honest opinions.”
Professor Mark Pearson, Griffith University, 2nd July, 2015 via Media Watch on ABC:
“I think people will be more willing to sue mainstream media over their social media output but will not be any more likely to sue ordinary citizens over their Twitter feeds. The mainstream media are going to have to be more cautious … “
As is often the case, technology seems to be one step ahead of regulation and the law. In this environment, at this particular time, the rules of engagement will always have an element of ambiguity until clear regulations and legal precedents are established.
One thing seems to be certain – none of us should assume the world of social media lives in isolation to the “real world”.