Will Marieke Hardy’s Twitter case change Australian law forever?

Comments posted by the writer have seen Twitter sued for defamation. Mosman Library

Twitter is being sued for defamation by a Melbourne man who was wrongly identified as the author of a “hate blog” directed at writer and TV personality, Marieke Hardy.

Hardy posted a tweet last year to “name and shame” Joshua Meggitt, the Melbourne man she incorrectly identified as the blog’s author, leading Meggitt to sue Twitter for defamation.

While Meggitt and Hardy have already apparently reached a (confidential) legal settlement, the broader issue of Twitter’s moral culpability and legal responsibility for allegedly defamatory tweets has now been brought sharply into focus.

This is the first time under Australian law Twitter has been sued for defamation, and it raises three interesting legal questions with respect to the liability of online intermediaries or platforms, such as Twitter, Facebook and YouTube.

1) It represents an application of the High Court’s reasoning in the case of Australian businessman Joseph Gutnick vs. the Dow Jones publishing firm. In that case, the High Court held that a cause of action for defamation arises in all places of publication. (That is, just because the Dow Jones is based in the US, it doesn’t mean Gutnick couldn’t bring the case to an Australian court.)

So even though Twitter is based in Silicon Valley, it can potentially be held liable for publication in Australia. This decision, while accepted law in Australia, has been very contentious overseas, particularly in the United States.

2) The case highlights the issue of whether disclaimers in the terms and conditions of various websites, such as the one on Twitter, provide legal immunity.

While such disclaimers will likely provide some protection, they will not provide absolute legal protection in all situations. Meggitt also has a strong argument in saying the terms and conditions will not protect Twitter against claims made by non-Twitter users.

3) It is one of the first cases in which the platform – in this case Twitter – rather than the person that actually made the defamatory comment has been sued.

This is novel because, in the United States, section 230 of the Communications Decency Act provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.

In Australia we do not have an equivalent immunity for platforms such as Twitter, Facebook or even Google. In Australia, platforms will have to rely on either the defence of innocent dissemination or schedule 5, clause 91 of the Broadcasting Services Act 1992 to avoid liability.

While both these provisions will clearly apply to internet service providers, they are unlikely to extend to provide immunity to platforms such as Twitter or Facebook. That means that, under Australian law, it is possible that platforms such as Twitter and Facebook could be held liable for posts made by their users.

If that is indeed the result in this case, Australian defamation law will need urgent reform. Online intermediaries and platforms should not be held liable for the actions of their users.

It is simply not practically possible for these platforms to filter all the content posted to these sites. If the law did require platforms to do so, they would either be forced to pass the considerable costs of doing so on to their members, withdraw from Australia altogether or change the very nature of their platform.

Moreover, if Australian law did place this burden on platforms, such a regulatory framework would be a powerful disincentive to innovative new services being developed and based in Australia.

The simple solution could be that, where defamation takes place on the internet, the individual who posted those defamatory remarks should be held responsible. Alternatively, if the legislature wishes to impose an additional level of liability upon online intermediaries and platforms, it should do so only where such an intermediary and platform fails to take account of a defamatory comment once they have been given notice.

A notice and takedown regime has similar antecedents in existing legal frameworks. With respect to copyright, the US Online Copyright Infringement Liability Limitation Act (a part of the DMCA) and section 116AG of the Australian Copyright Act 1968 limits, in certain circumstances, the remedies available against carriage service providers to taking down infringing material, terminating a specific account and/or disabling access to an online location outside Australia.

With respect to defamation, Australia already has detailed provisions for offers to make amends. A scheme of this nature has the potential to protect an individual’s legal interests while fostering collaborative communication on the internet. It is a potential reform that deserves further consideration.

In essence, the law is still struggling to keep up with rapid advances in technology over the past few decades, and this case has the potential to expose some weaknesses in Australia’s existing defamation law with respect to online intermediaries and platforms.

It will definitely be a case to follow (both on and off Twitter).