During the last year, defamation law was dominated by emergent technologies, and in particular the continued explosion of new social media platforms. The Courts continued to grapple with reconciling Uniform Defamation legislation, introduced before the advent of many new technologies, with the raft of cases involving the inappropriate use of social media. The high profile decision involving former Australian Treasurer Joe Hockey saw calls in numerous quarters for legislative reform of defamation law, including that it be simplified to allow it to keep pace with the technological advances1. Importantly, the decisions also emphasize that defamation law remains complex and costly, and that using the Courts to assign dollar figures remains a fairly blunt tool for remedying bruised feelings.

TROUBLE IN UNDER 140 CHARACTERS: THE POWER OF THE TWEET

Twitter is a social media platform allowing tweets of 140 characters or less. Given their necessary brevity, tweets often lack context, and this was a key issue in the high profile case of Joe Hockey v Fairfax. The case also highlighted the pitfalls of posting romotional material on social media. In 2015, the former treasurer became the first Australian politician to win a defamation case over a tweet. In the proceeding, Mr Hockey alleged that Fairfax had defamed him in newspaper articles, tweets and advertising signs and placards.

The underlying allegation was that Mr Hockey was providing privileged access to a select group in return for donations to the Liberal party. The first tweet said “Treasurer Hockey for sale” and hyperlinked to Fairfax’s story. The second tweet said “Treasurer for Sale: Joe Hockey offers privileged access” and contained a summary of the contents of the article.

Justice White of the Federal Court found that the articles published in various newspapers were not defamatory, but that two Twitter posts by The Age were. He found that despite containing the hyperlink, the tweets were discrete publications, which should be considered in isolation, as there was no guarantee that readers would “click-through” to review the hyperlinked material. Specifically, His Honour said that some people may read the tweet “without going further.” Accordingly, the tweets were found to be defamatory, even though the articles were not.

Ultimately, Mr Hockey was awarded AU$200,000 in damages. However, notably, Fairfax was only ordered to pay 15% of Mr Hockey’s legal costs given that of all the various publications complained of, only the tweets were considered defamatory, and as a result, was somewhat of a pyrrhic victory. The prohibitive legal costs of litigating defamation actions remain a powerful deterrent to would be plaintiffs.

TELL HIM HE’S DREAMING

The Australian cult movie classic “The Castle”, featuring the bumbling and incompetent solicitor Dennis Denuto, featured in a decision of the Queensland District Court. In Smith v Lucht [2015] QDC 325, the plaintiff Smith, a solicitor of 36 years’ standing, commenced defamation proceedings against Mr Lucht, former husband of his daughter in law, after he referred to him as “Dennis Denuto”. The references were made in an email to his daughter in law in early 2013, and again in two conversations with Mr Smith’s family later that same year. For the benefit of those who have not seen the film, or Mr Denuto’s eloquent oral submissions on “the vibe” of the Australian Constitution, Judge Moynihan described Dennis Denuto as “likeable and well-intentioned, but inexperienced in matters of constitutional law and not qualified to appear in person in ligation of that nature”.

Mr Smith claimed AU$250,000 in damages. The Court dismissed the claim, finding that the nature of the imputations did not lead to the solicitor “sustaining harm.” It was also relevant that the initial publication was confined to two members of his family, with whom he was having a dispute. It was relevant that they were able to make their own assessment of the imputation, and, the statements were not made, intended or likely to be published by Lucht beyond the two family members. It was not a relevant consideration that there was subsequent media interest in the matter, as this was not part of the initial publication. Accordingly, the case was dismissed. There was also a sting in the tail of the judgment for Mr Smith, as he had failed to accept various apologies and settlement offers made by Mr Lucht, and accordingly, was ordered to pay costs on an indemnity basis.

“KEYBOARD WARRIORS” AND THE DANGERS OF SOCIAL MEDIA

The Victorian Supreme Court decision of Gluyas v Canby [2015] VSC 11, concerned a war of words between two bloggers, one based in Australia, and the other in the US. The plaintiff was Philip Gluyas, a 49 year old Ballarat based pensioner, and country junior football umpire. Gluyas, alleged that Oliver Canby, a US resident, had defamed him in a series of blog posts on his blog “Autism is Bad”. Specifically, Canby accused Mr Gluyas of being a sexual deviant and a paedophile who preyed on young football players. Mr Gluyas, who was unrepresented (save for a duty barrister at trial), was no stranger to defamation suits, having previously litigated against US based residents in both the Supreme and County Courts. Mr Canby, did not attend the trial or have legal representation, and accordingly, the case against him was undefended.

In its judgment, the Court noted that the blog posts were viewed by only a very small number of people. Notwithstanding the small ambit of the publication, the Court was conscious of the “grapevine effect” and that the publication may be picked up and re-published via online search engines. Given the serious nature of the defamatory imputations, the Court held that Gluyas was entitled to an award of damages to vindicate his reputation and standing, and ordered Canby to pay AU$50,000 in damages, plus interest. The Court also considered that Canby failing to remove some of the publications constituted aggravating conduct. Had the parties been legally represented, the legal costs would certainly have overwhelmed the ultimate damages award.

WHERE TO FROM HERE?

Last year saw a raft of defamation cases arising out of social media both issued and litigated, and social media, and Twitter in particular, featured heavily. The plethora of popular ‘conversational’ social media forums is effectively rendering many private conversations public. What may previously have been the subject of a dinner party conversation between friends, may now end up published to the world at large through online activity. The ease of publication, and its effectively instantaneous (global) reach is a volatile combination, and one which is likely to play out in the Courts, and significantly, in the defamation context. Despite the explosive proliferation of social media platforms and associated ‘publications’ occurring as a result, the cost of commencing defamation actions nonetheless remains a significant barrier to most ordinary Australians, unless privately funded or self-represented.