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After Hockey: social media will need to be less anti-social

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While Joe Hockey’s defamation win against Fairfax Media was far from the triumph he was clearly hoping for, there were some rather ominous portents for social media watchers, especially those in the Twittersphere.

The Federal Treasurer sued a number of Fairfax publications over what Federal Court Justice Richard White described as a “suite” of articles.

These appeared in The Age, The Sydney Morning Herald and the Canberra Times. But Mr Hockey’s case was unsuccessful for all of these articles.

• Read all about the case here

What was held to be defamatory rested only with what was said on an SMH poster (“Treasurer for Sale”) and two tweets – one a hyperlink to the other.

How the two tweets cost Fairfax $80,000 should give anyone using Twitter a great deal to think about. The clear implication is that a bold statement will stand by itself and will not be saved, at least in terms of our defamation laws, by a hyperlink to material that may help explain what an author is trying to say.

There has been very little activity in the courts dealing squarely with Twitter publications alone. Nevertheless, its immediacy and tight restriction on content sets it on an inexorable collision course with Australia’s outdated and inadequate defamation laws.

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Australia’s defamation laws are out of step with modern communications. Photo: Getty

Even with the introduction of ‘new’ uniform defamation laws 10 years ago, the basis of the action and defences in a case such as Mr Hockey’s were laid down when printing presses were progressing in leaps and bounds at the beginning of the industrial revolution.

Those following this area will not be surprised by the direction the courts are taking nor the way damages are going to be assessed. Last year a District Court in NSW awarded $105,000 for material posted on Twitter and Facebook – a judgement that generated a great deal of attention both here and overseas.

In this case, if we simply divide the words by the damages in the two tweets, the first tweet (“Treasurer Hockey for Sale”) works out to $10,000 per word in damages. The second tweet was joined to a “summary” that had a few more words (35) but was nevertheless brief.

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Of course, defamation damages are arrived at in a more arcane and less rational manner than this. Nevertheless, it brings home the point that only a few words can now lead to lot of trouble.

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Fairfax Media was ordered to pay the Treasurer $200,000 in damages for a headline poster and two tweets found to be defamatory. Photo: AAP

The situation gets even more murky when trying to establish who actually read the tweets – as this is relevant to how damages can be assessed. (No evidence was provided as to how many may have read them.)

The Age has approximately 280,000 followers of its Twitter account (only 789 of them actually downloaded the articles from the link).

Justice White assumed people “perhaps in the tens of thousands” would have read it.

The judge may have introduced something of an appreciation of the characteristics of Twitter when he observed that readers do not “take in” the subject matter of every tweet.

However, it still does nothing to assist anyone, let alone lawyers in this area, on how Twitter communications – or any other social media platform for that matter – can be assessed when it comes to damages.

There is definitely one thing that can be taken away from this judgement: Twitter cases will be far more common in the future and damages awards will continue to rise.

Nicholas Pullen is a Melbourne-based partner with HWL Ebsworth specialising in media and defamation law.

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