Defamed individuals, particularly politicians, celebrities and other public figures may get some comfort from an award of damages, but more often than not, their real concern is their reputation.
How do you stop defamatory allegations from spreading on Twitter or Facebook? We now know that Australian defamation laws apply to social media, but it remains unclear what practical recourse is available. This issue urgently requires the attention of legislators in Australia and overseas.
On 20 March 2014 ten million Turkish residents were cut off from Twitter when their government took “protective measures” to stop tweets alleging corruption involving Prime Minister Recep Tayyip Erdogan and members of his family. The Turkish government obtained court orders associated with defamation proceedings, and applied the ban when Twitter refused to comply with the court’s directions.
Predictably, the ban has been only partially successful, with immediate subversion by Turkish residents and reports of a spike in tweets.
The ban is drastic and should be condemned by all who value free speech. However it does highlight the difficulty, faced by all governments, of balancing the opportunities offered by social media with the need to protect people who are defamed.
Australian Prime Minister Tony Abbott recently observed that the rise of social media intensifies the political process:
The thing about social media is that it is anonymous, so it can be much more vitriolic and extreme than normal media and yet it is there for everyone to see. It is kind of like electronic graffiti.
Traditional media and its content creators can be sued if they broadcast or publish defamatory allegations. This has always provided a strong incentive to engage with plaintiffs, and to agree to remove defamatory content and publish apologies if the publications couldn’t be defended. More often than not, court proceedings are avoided.
THE EVIL OF THE GRAPEVINE
Last month, in what is believed to be Australia’s first Twitter defamation case, Mickle v Farley, the courts confirmed that Australia’s defamation laws also apply to social media. In that case Judge Elkaim made a substantial award against the defendant, in line with traditional defamation cases, which is partially intended to compensate and vindicate the person whose reputation has been defamed.
Judge Elkaim observed that it is common knowledge that when defamatory comments are made on social media they spread, and that the “evil lies in the grapevine effect”. Yes, you have established that a publication is defamatory, but do you pursue the authors of the 10,000 re-tweets posted all around the world? Can you request that the tweets be removed? How long will they be accessible?
Certainly there is little chance of achieving the same level of exposure for an apology that the original, scandalous allegation enjoyed.
A GLOBAL ISSUE
Social media is global. It needs consistent laws across global jurisdictions. There are many instances of media corporations and individuals being forced to defend actions in foreign jurisdictions.
There is an obvious vulnerability of private individuals to cyber defamation and a lack of redress, largely because cross-border defamation laws are uncoordinated.
For those of us in Australia, it doesn’t help that the giants of social media are based in the US, a country which so values freedom of expression that it is favoured over a plaintiff’s right to protection of reputation.
BALANCING REPUTATION AND FREE SPEECH
Australia has no direct parallel to the US First Amendment. The social media giants’ content-management policies are consistent with these values. For example, Twitter states that “[a]s a policy, we do not mediate content or intervene in disputes between users.”
By contrast, Australian defamation laws aim to balance reputation and free speech, although in reality, Australia’s lack of constitutional freedom of expression means the balance often tips in the plaintiff’s favour. It is difficult to reconcile this with a lack of regulation of social media and the resulting concerns about protecting reputation.
BEING PART OF THE SOLUTION
It seems obvious that the social media companies need to be involved in any solution. Interestingly, there are some indications that they may not be able to remain passive. The Victorian Supreme Court has found Google liable for defaming a person through search results produced by Google’s search engines. The plaintiff complained that a search of his name brought up an image of him next to gangland and criminal figures, alongside the headings “Melbourne Crime” and “Shooting probe urged November 20, 2007”.
The plaintiff asked Google to block the URLs but Google declined, arguing that it was not the publisher of the images and had played a passive role in the process. The Court held that once Google had notice of the material, it became liable for the publication. The Italian courts have also found Google defamed a plaintiff there in a similar case.
Social media companies are starting to evolve their content-management policies to be more sensitive to the values of the jurisdictions they operate in. But there is still much uncertainty and Australian legislators and other governments need to act to more effectively to protect those targeted by unsubstantiated social media attacks.
In the meantime it remains unlikely that Twitter or Facebook will remove defamatory content without a court order. And, given that the vast majority of defamation matters never make it to court, plaintiffs may be powerless in the face of a refusal to remove the content. Despite this, plaintiffs should notify the social media publisher to put them on notice of their concerns, and then concentrate their efforts on the author of the content.