Shock and disbelief. This was Julie Posetti's reaction to discovering that the Editor-in-Chief of The Australian was suing her for defamation. The substance of his complaint? Three tweets.
While covering another journalist's presentation at an academic conference in 2010, Posetti live-reported the event on Twitter, quoting and summarising the speaker's description of working conditions at The Australian and claims regarding the Editor-in-Chief, Chris Mitchell.
Mitchell objected to the tweets in his paper the next day, calling the claims a lie and threatening to sue Posetti for an attack on his character.
Widely reported as the first Australian Twitter defamation action, the controversy took many in the journalist community by surprise, not the least of all Posetti herself.
"My human reaction was shock and disbelief, I suppose," she says. "I think there was also the sensational element that came from this possibly being the first incidence of a Twitter defamation case. But I maintain what I felt then, which was from my point of view, I was doing the sort of work that I had done on a daily basis as a radio news reporter going to a conference, reporting what I heard, doing so I believe fairly and accurately in what is essentially a real-time environment."
As an experienced journalist and a journalism lecturer at the University of Wollongong (one whose PhD focus is The Twitterisation of Journalism, no less), Julie Posetti would have possessed a professional understanding of issues surrounding defamation liability, which is more than you can say for the majority of Facebook and Twitter users sharing content online.
But that expert knowledge wasn't able to prevent her from being hit with a headline-making lawsuit (later dropped), highlighting the scale of exposure where social media meets the law.
Social media equals a billion voices
In October 2012, Mark Zuckerberg made a personal announcement on his social network that in September, Facebook had reached more than one billion monthly active users.
As the Facebook co-founder put it, "Helping a billion people connect is amazing, humbling and by far the thing I am most proud of in my life".
In the same year, Twitter hit over 500 million accounts, Time magazine used Instagram to officially document the effects of Hurricane Sandy, and relative newcomer Pinterest crept into the top 50 most visited web sites for the first time. Social technology, no matter which way you look at it, is a hit.
But despite the rampant growth of social media and networking services, what many users fail to grasp is that communications shared in public on the net can potentially leave them exposed to legal liability for defamation.
If you say something in public — be it on a blog, a forum, on Facebook or Twitter — and it falsely injures the reputation of another, you could easily be sued, provided a valid defence to what you wrote doesn't apply.
In the eyes of the law, social media users, bloggers and online commenters are all 'publishers', regulated by historical defamation laws that largely applied only to journalists and traditional media interests like newspapers and magazine companies.
This isn't to say that defamatory communications are always pursued in the courts, but the ease of our contemporary access to digital publishing is an unprecedented development in the history of human communication, and the risk of legal liability is closer than most think.
"It's unlikely, it's a lightning-strike possibility, but then, so is much of defamation action traditionally in the print media," says Mark Pearson, Professor of Journalism at Bond University and author of Blogging and Tweeting Without Getting Sued: A Global Guide to the Law for Anyone Writing Online. "There are countless more quantities of defamation happening and published than are actioned. It's always been a drop in the ocean. I can open almost any newspaper and see potentially defamatory material, particularly as I get away from the mainstream publishers and into suburban and regional press. There's all sorts of litigious material being published that doesn't necessarily have a defence. But people either don't know, don't care or can't afford to pursue it, and that's the same online now, with gigabytes of such material out there, only some of which is targeted and actioned.".
So while the chances of being sued are slim, the bigger issue is that so many of us are unwittingly committing these civil wrongs in the first place.
If you've ever falsely criticised a friend, colleague or public figure and impugned their reputation in public, it's theoretically actionable.
"I don't think there are very well-established levels of media literacy in Australia, and I do think that poses a problem when we've got the democratisation of publishing platforms and the capacity to publish, but we don't have widespread capacities in terms of media literacy and particularly social media literacy," says Posetti.
And it's not just a problem that affects social media users in the mainstream. "Often either lawyers or what you might call academics or intellectuals let their guard down as well," Mark Pearson says. "I think all of us, because of the very nature of social media being engaging in a conversation online, let our guard down because we slip into a conversational tone where we're talking with a group of friends and psychologically we fall into that and forget the safeguards that we use when formally broadcasting or writing a written publication. So the ordinary person, the lay person, is really up against it if they have no background in this area at all."
Hundreds of jurisdictions
In simpler times, if you defamed someone, the litigation of the matter could be considered a relatively straightforward affair.
The court would look at where the defamatory communication was published and the laws of that jurisdiction would apply in determining whether the defaming party was to be held liable.
These days, things are a little more complex. Communications on the internet are effectively published everywhere; defamatory material contained in a blog or social media update could be downloaded virtually anywhere at any time, potentially exposing the publisher(s) in question to the laws of several hundred legal jurisdictions worldwide.
In 2002 the High Court of Australia handed down a landmark decision in Dow Jones v Gutnick, in which the Australian respondent Joseph Gutnick was held to be able to sue for defamation in his home state of Victoria — where his reputation existed — over a defamatory article published online by a magazine based in the United States.
Legal representation for the appellant argued that the place of publication was the US, but the High Court ruled that in the case of material published on the internet, publication rather occurs wherever the material is downloaded.
According to Justin Castelan, a Melbourne-based barrister and author of the legal blogDefamation Watch, the Gutnick decision had a transformative effect on defamation law and not only in Australia. "It was a ground-breaking case. The High Court said, when a person is suing, if their reputation is in Victoria they're entitled to sue in Victoria, provided people have read [the defamatory communication] in Victoria, because the crucial point is that the place of publication is where it is read and understood."
While the case isn't strictly authority anywhere outside Australia, the decision is frequently referred to internationally, especially in common law countries such as Canada and England.
"I think it's fairly widely accepted throughout superior courts in the Western world that people are responsible wherever the material is downloaded," Mark Pearson says. "I don't want to be a scary bear telling everybody not to use social media. I'm an active user myself and I think there are huge benefits. And I certainly am not arguing that if somebody publishes something they're going to get dragged across the world to face court in some remote country. But I think it's a reasonable point to make given the amount of international travel people do today, that people should think twice, certainly before publishing something not just defamatory — but that may well be illegal in a travel destination."
The latter point in particular is worth extra emphasis. While the gist of judicial reasoning in decisions like Gutnick is that defamation liability could theoretically attach wherever defamatory material is downloaded, most of the time Australians are effectively safe from actions for civil defamation in foreign jurisdictions.
Unless you possess commercial assets or interests in another country, it's financially impractical for a defamed party to trouble with the expense of suing you there. However, if you end up travelling to another country where a legal action has been brought against you, you could in all reality be arrested at the airport.
"The two that spring to mind because of their popularity for travel for Australians are Thailand and Vietnam," says Pearson, "both of which have an incredibly poor track record with free expression and have been quite active in pursuing and jailing people who breach publication guidelines."
Examples of the risks travellers face include the case of US-based lawyer and blogger Gopalan Nair, who was jailed in Singapore for criticising a judicial officer, and Harry Nicolaides, an Australian who was jailed in Thailand for writings deemed critical of the monarchy.
Old laws, new interpretations
While much classic case law regulating defamation hails from a technologically distant era (a significant legislative overhaul of Australia's defamation laws in 2006 didn't seek to address issues posed by web communication), case by case, common law is slowly adjusting to the legal challenges of social media.
"Judges are applying the traditional laws to new fact situations, and those new fact situations become law themselves. That's the way it's always happened, and it's often been a mistake to write certain new technologies into the law, into legislation, because these technologies can change quite rapidly," Pearson says. "What we have is a whole series of cases throughout the world, particularly throughout our US/British legal system, that would serve as precedents for our courts, and some within Australia itself. So in recent months, the last year or so, we've had important decisions applying the law or breaking new ground with social media."
Examples include ACCC v Allergy Pathway and Clarke v Nationwide News, two cases in which the Federal Court held that a party could be liable as a publisher for comments made by fans on its Facebook page — due to being made aware of the posts and not removing them (significant decisions for anybody who has responsibility for a web site, blog or social media page).
Most recently, the Victorian Supreme Court held in Trkulja v Google that Google could be held liable as a publisher for defamation communicated by its search engine results, having failed to act on requests to take down the defamatory material.
"For the law of defamation, the common law, the question of publication has always been very broad, much broader than people would realise," says Justin Castelan. "Let's say you wanted to sue for an article written in the newspaper. You can sue the author of the article, the journalist, the publisher of the newspaper and the editor, because they're all deemed to be publishers."
Strictly speaking, you can even sue the local newsagent, who is also deemed to be a publisher for selling the defamatory communication, although newsagents can often claim the defence of innocent dissemination.
In light of the above, it might seem disturbingly easy to defame people on the internet and social media — and it is — but with the right approach, you can avoid putting yourself in hot water. Strange though it might sound, there's considerable legal wisdom in the childhood lesson: 'if you don't have anything nice to say, don't say anything at all'.
"I like to take a Zen approach to this," Mark Pearson says, "and suggest that people think very carefully about what they're going to be saying online, not be impulsive or engage in social media if they're under the influence of some substance, and to pause and think, 'If this was being said about me or about someone that I really respect, what would I think of them as a result of it?' And normally you would adapt what you were going to write or be content to have drafted it and not sent it, just so that you've at least expended that negative energy but haven't taken the legal risk by firing it off."
If you're an online writer or an avid social media user, it's also worth having an appreciation of the defences to defamation (see below for more info). If you can demonstrate that one applies to what you published, you won't be in any trouble.
"Tell the truth. That's a good start," says Justin Castelan. "The defences to defamation claims, there's a whole raft of them. The basic ones are truth, fair comment or honest opinion." For those falling into the content manager category (people who run web sites, blogs or social media pages where others have the ability to post comments), be aware that you can be held liable for what others write or post on your page. If you see something that could be considered legally dubious, don't hesitate to delete it, especially if someone requests you to do so."
"If someone is threatening legal action, people should always take legal advice," Mark Pearson says. "Even though that might be expensive, it can finish up being a lot less expensive than having some sort of court order against you. If you yourself believe that you have actually done the wrong thing, and that you have said something false or you can't substantiate it in any way and there's no actual legal action threatened, then you should just apologise and remove the material. But if the person is threatening legal action, you would first take legal advice before apologising, because lawyers might suggest the best framing of any words of an apology."
On the other hand, if you don't feel that you've done anything wrong (and have received legal advice regarding defences), issuing an apology might not be something you're interested in.
Despite having been on the receiving end of Australia's first high-profile Twitter defamation lawsuit, Julie Posetti's views on the benefits of social media, and what she calls its 'democratising effect', remain unchanged.
"It has given people who have felt misrepresented, underrepresented or maligned by the mainstream media an opportunity to correct the record, to go directly to journalists and to express their consternation, or to try to redirect journalists through example. It's enabled one-to-one communication on a much broader scale between citizens and politicians who are active on the sites that we're talking about here, mainly Facebook and Twitter, but also through blogs."
"And it's done the same for consumerism: the consumer watchdog effect of social networking sites. The ability for dissatisfied customers to effect change; I think that's pretty extraordinary as well. Even right down to the implications for the law, as it currently exists, in reference to governing behaviour. There's an opportunity for pushback there, with individual citizens campaigning on a range of issues. For me, the positives far outweigh the risks, but again there are significant risks and pitfalls which we're still working our way through."
Online defamation 101:
1. You are a publisher
If you post defamatory material in public online or via social media, in the eyes of the law you could be liable as a publisher. Defamation law traditionally focused on journalists and media companies as publishers, but the advent of the internet and social media in particular has made it much easier for ordinary people to legally defame others. A huge amount of defamation occurs every day, but only a slim percentage of cases are actioned. Check out 'The elements of defamation' further down this article.
2. You're liable where you're downloaded
In Australia and other countries, a recurring legal principle is that liability for defamation exists where the defamatory material is published, and in the case of internet publication, this increasingly means wherever you're downloaded. There are hundreds of legal systems in the world and it's possible you could be sued in many of them for any defamatory comment you post via the web or social media. Practically speaking, this won't be a problem for most resident Australians, but for businesses with interests in other countries or frequent overseas travellers, it's worth bearing in mind.
3. Publisher is defined broadly
In addition to the person who writes a defamatory communication, publisher liability also extends to anyone who reproduces it (so think twice before you hit that 'Retweet' button). Historically, if a defamatory article was published in a newspaper, the journalist, the editor, the publisher and even the newsagent could variously be held liable as publishers. These days, the same broad liability is being held to apply to web sites and Facebook pages, so if someone writes something defamatory on your web page, delete it or you might be held liable.
4. Tell the truth
There are a number of defences to defamation, many of which revolve around concepts of truth and the public interest. It's worth remembering that defamation is concerned with 'false statements' about a party. In short, if what you say is true (and you can demonstrate the truth of it), then you have a stronger defence against defamation. Check out 'Defences to defamation' further down this article.
5. Get legal advice
Above all, if you're seriously concerned that you might have defamed someone and legal proceedings are commenced, engage a lawyer. This article summarises some of the law surrounding online defamation but it's not legal advice in itself. "If you're panicking… it's a case by case proposition, but get legal advice. That's the answer," says barrister Justin Castelan. "If you get a letter of demand from someone, go to a lawyer and take it from there."
The elements of defamation
Defamation is defined as communication to third parties of false statements about a person that injures the reputation of the person or deters others from associating with the person.
In its simplest form, it means to spread a demeaning report about a party that does them harm.
For defamation to occur, the plaintiff (the person who claims to have been defamed by another) must be able to prove that three things have taken place.
First, there must have been a communication published to another (a third party, ie. someone other than the plaintiff).
Second, the communication in question must identify the plaintiff (not necessarily by directly naming him or her, but by providing sufficient detail that the plaintiff can be identified).
Third, the communication must defame the plaintiff. This third element is satisfied if the published communication exposes the plaintiff to ridicule, lowers the plaintiff's reputation in the eyes of other members of the community, causes people to shun or avoid the plaintiff, or injures the plaintiff's professional reputation.
Defences to defamation
Once all three of the elements of communication, identification and defamation have been demonstrated, it's still possible to defeat a defamation action provided the defendant can demonstrate a valid defence, which legally justifies the publishing of the communication for reasons of public interest.
There are a number of these defences, any of which the defendant must prove.
A non-exhaustive list is provided by the Defamation Act 2005 (NSW), mirrored in other states, including: justification (the defendant proves that the defamatory imputations are substantially true); contextual truth (among the defamatory imputations are contextual imputations that are substantially true); absolute privilege (protected comment issued during parliamentary and judicial proceedings); public documents (the defamatory material is contained in a public document); fair report of proceedings (the defamatory material was reported in proceedings in the public interest); qualified privilege (related to public interest); honest opinion (opinion related to public interest, as opposed to a statement of fact); innocent dissemination (distributing without awareness of defamatory matter); and triviality (plaintiff unlikely to sustain harm).
Australian defamation legislation
The Australian states and territories enacted uniform defamation legislation in 2006.
In NSW, the law is the Defamation Act 2005 (NSW), which has its counterparts in the other jurisdictions.
While not entirely uniform, this new legislative framework did help to streamline a much more disparate set of statutes in operation prior to 2006.
Like all Australian legislation and much case law, the uniform defamation acts are freely viewable online at the Australasian Legal Information Institute's web site.