Making history: Teacher Chris Mickle’s legal action became the first defamation battle involving Twitter to proceed to a full trial. Photo: Central West DailyA teenager, a former Labor MP and a prominent columnist share an unlikely bond: they are among the first publishers in Australia to be sued over slurs on social media.
As the internet makes a media mogul of any person with a smartphone, tablet or computer, the defamation battles that were once waged only against well-resourced media companies are being fought on new ground.
Andrew Farley, a former student at Orange High School, found this out the hard way.
Farley did not have the benefit of editors, subeditors and lawyers vetting his posts when he made defamatory comments about music teacher Christine Mickle to about 50 Facebook friends and 60 Twitter followers.
Mickle sued him for defamation and, in an unpublished judgment in November that only came to light this week, he was ordered by the NSW District Court to pay $105,000 in damages. He has since declared bankruptcy.
”I never meant to defame her,” Farley said this week. ”It was never meant for public broadcast. This has really shaken me.”
The Mickle case became the first defamation battle involving Twitter to proceed to a full trial in Australia. It crossed the finish line before the Federal Court has heard the defamation case brought by pollsters Mark Textor and Lynton Crosby over a tweet by former Labor MP Mike Kelly.
Joshua Meggitt, the Melbourne music reviewer who sued columnist Marieke Hardy and Twitter in 2012, settled his claim against Hardy after she paid in excess of $15,000. He later dropped his case against Twitter.
Media lawyer Stephen von Muenster, the principal of Sydney law firm von Muenster Solicitors & Attorneys, said the Mickle case was ”unremarkable … beyond the fact it was on Twitter” and the same principles of defamation law would apply regardless of the medium.
While the decision does not create new legal principle, it has underscored that amateur publishers will be held to account for ill-advised comments – even if they are unaware of their legal responsibilities.
Stuart Gibson, of Melbourne law firm Gibsons, acted for Meggitt. He said he monitored potentially defamatory comments on social media for a number of clients, and warned people about republishing defamatory comments by forwarding emails, sharing posts and retweeting without any qualifying remarks.
Gibson said Meggitt’s case against Twitter was dropped because the tech giant had ”the most water-tight and extensive terms and conditions for users”, which excluded its liability for defamatory comments by other users of the site.
A person who was not a Twitter user and was defamed on the site would not be bound by its terms and conditions, but social media companies are rarely sued for defamation.
Unlike professional journalists, whose employer will likely be sued alongside them in a defamation case and cover any damages bill, amateur publishers will be left to fight the case alone for a number of legal and practical reasons.
In many cases social media companies would be able to use the defence of ”innocent dissemination” under state defamation laws, or potentially an even broader immunity from civil and criminal actions that is given to ”internet content hosts”. Assuming both provisions apply, neither protection is absolute: a company that is alerted to defamatory material and does not remove it may be liable.
There are other laws at play to shield US companies. Sydney media barrister Matthew Lewis said a combination of two US laws, the Communications Decency Act and the SPEECH Act, which fiercely protect US citizens’ right to free speech, made it ”highly unlikely” a plaintiff could successfully enforce a judgment or order against a US social media platform.
He said the companies generally did not have any assets in Australia and ”no foreign defamation judgment has been enforced in the States since 1964”.
He said it was for this reason that we were now seeing a plethora of cases around the world where the ”true publishers” of user-generated content were being sued for defamation rather than social media platforms.