Last November, a young man was ordered by a NSW court to pay A$105,000 in damages for defaming a teacher at his former school on Twitter. The decision, which only came to light earlier this week, should serve as a reminder to all users of the legal risks involved in using social media.
Judge Michael Elkaim ordered Andrew Farley to pay Christine Mickle $85,000 in compensatory damages and $20,000 in aggravated damages for a number of tweets Farley sent to his followers. The judgment does not repeat exactly what was said about Mickle to reduce any further damage to her reputation.
The case is the first Twitter defamation battle to be litigated to final judgment in Australia. It highlights a challenge for future reform of Australian defamation laws to make them more protective of free speech, and not just in the online environment. As it stands, defamation law in Australia is pervasive and is not as protective of free speech as some people assume.
This is not the first time that someone has sued for defamation arising out of a tweet in Australia. Media personality Marieke Hardy settled a defamation claim with Joshua Meggitt after she wrongly identified him as the person behind a “hate blog” directed at her.
Prominent Liberal Party pollsters Lynton Crosby and Mark Textor have also started defamation proceedings in the Federal Court of Australia against former Labor MP Mike Kelly over a tweet accusing them of engaging in “push polling”.
Twitter defamation cases are starting to become more common around the world. In the UK, the late Lord McAlpine sued Sally Bercow, the wife of the Speaker of the House of Commons, for a tweet that Justice Tugendhat found meant that McAlpine was a paedophile who had sexually abused boys living in care. Bercow ultimately settled the proceedings.
Former New Zealand cricket captain Chris Cairns successfully sued Lalit Modi, a former Indian Premier League commissioner, in a UK court over a tweet which suggested Cairns had been involved in match-fixing. Cairns was awarded £90,000 damages.
Cases of defamation by tweet are likely to increase in the years to come. Yet defamation law is not foremost in people’s minds when they tweet. Twitter is an instantaneous form of communication, and some people use it in a disinhibited way, at their own peril.
But Twitter is like every other form of communication: defamation law applies to it. Defamation law does not just apply to mass media, like newspapers, radio and television. It applies to every form of communication, from private conversations to national broadcasts and beyond. Whenever one person is talking about another person in front of other people, there is a risk of defamation.
There is no minimum requirement as to the number of people you are speaking to before liability for defamation can arise. Talking about a person to another is sufficient, so it does not matter how many – or how few – followers you have on Twitter. Defamation can still occur, although the number of followers you have will be relevant to how much damage to reputation is done, and therefore how much you might have to pay in compensation.
Australian defamation law favours people suing, rather than people being sued. There are a range of defences you can rely on if you are sued or threatened with a defamation claim. The most important ones are truth and comment, but you have to prove what you have said is true and, if you are making a comment, it has to be based on fact. In practice, these defences can be difficult to establish.
Most people, of course, do not sue for defamation. But every communication carries a risk. The risk can usually be managed because people ignore what has been said about them or accept it as part of free speech. They may also be unaware of their rights or do not think it is worth the time, energy and resources to pursue the matter in court.
Taking down the tweet and apologising usually works. Suing for defamation, like all litigation, is expensive. But, as Mickle v. Farley shows, if people are sufficiently upset by what has been said about them online, they do have legal rights they can exercise.
Towards the end of his judgment in Mickle v. Farley, Judge Elkaim makes the point that unlike mass media outlets – where you have circulation figures or the ratings to inform you – it is difficult to know with social media platforms how big the audience is.
Social media platforms like Facebook and Twitter make it easier for people to share or retweet. This means that it is easy for people to spread defamatory material and also difficult for people to know how far and wide their reputations have been damaged.
In the current environment, the best advice is to think before you tweet, bearing in mind that what you tweet can be retweeted by your followers and can be found by online searches.