The evolution and increased use of social media has required businesses to grapple with this new medium. Those without a robust social media policy expose the business to a myriad of possible adverse issues which may arise. The first Australian Twitter-based defamation case to proceed to trial has provided a timely reminder of the possible exposure and adverse impacts which can result from misconduct via social media.

The Twitter Case

The recent District Court decision of Mickle v Farley1 concerned the defendant, Mr Andrew Farley, a 20 year old former student of Orange Grove High School.  In late 2012, Mr Farley launched a tirade of defamatory Tweets and Facebook posts regarding a music teacher at his former School, Ms Christine Mickle.  The motivation for these Tweets appeared to be an unsubstantiated view that Ms Mickle had something to do with Mr Farley’s father, the former head of music, leaving the School in 2008.  Ms Mickle was a very experienced teacher with a widely recognised reputation (both within and outside her local community) as having great skill and devotion to her work and students.  The comments made by Mr Farley caused Ms Mickle to be very hurt, particularly any suggestion that she had been responsible in some way for any harm to, or ill health of, Mr Farley's father.  Following Mr Farley's comments, Ms Mickle went on sick leave.  In fact she only began to return to work on a limited basis a year later.His Honour Judge Elkaim accepted that all of the imputations arising from Mr Farley's comments about Ms Mickle were untrue.  Following letters written to him by Ms Mickle's lawyers, Mr Farley had (by letter) unreservedly apologised for any hurt or upset caused by the comments and had taken steps to remove them.  However, in response to the proceedings then commenced by Ms Mickle, Mr Farley sought to rely on defences of truth and qualified privilege, which ultimately were unsuccessful.

Consequently, although the Tweets and Facebook posts were ultimately removed within a couple of weeks and unreservedly apologised for, Judge Elkaim awarded Ms Mickle $85,000 in compensatory damages. In making this award his Honour highlighted that defamatory comments on social media can spread easily, stressing that this grapevine effect was inherent to this type of communication and is where their evil lies.  In addition, his Honour awarded a further $20,000 in aggravated damages on the basis of Mr Farley having advanced what he described as the spurious and hurtful defence of truth, which evidently contradicted his seemingly sincere apology.  Accordingly, Ms Mickle was awarded the sum of $105,000 and her costs of the proceedings - probably the most expensive 140 characters of this young man’s life.

What Can We Learn From This?

This case, the first Twitter-based defamation suit to proceed to trial in Australia, highlights once again the perils of social media.  Although this case arose in a private context, from a business' perspective, it also acts as a reminder of the importance of a robust social media policy which covers communications using applications such as Facebook and Twitter.  Contrary to some lagging public perceptions, social media is not an area immune from legal regulation and it is clear that even a 140 character Tweet can prove very costly.  As we have highlighted in previous Focus Papers, it is very important for all businesses to have in place clear and robust social media policies, including in respect of employee conduct.  Businesses also need to have procedures in place to deal with issues which may arise in the social media context, whether by employee conduct or consumer activity on a business Facebook or Twitter account.

Limitations of Social Media Policy

A number of recent cases have relevantly looked at some aspects of social media policies, particularly the balance between private conduct and conduct which can and should be covered by an employer's social media policy.

Pearson v Linfox Australia Pty Ltd

One such issue is whether a businesses' social media policy can, and in order to protect the business interests should, extend beyond working hours. In the recent Fair Work Commission case of Pearson v Linfox Australia Pty Ltd2 an employee refused to acknowledge his employer’s social media policy because it "sought to constrain his actions outside of work hours".3 However the Commission recognised that this after hours restriction was a legitimate constraint by the business to protect its reputation and indeed noted that it is difficult to conceive of an effective policy which would operate "in an "at work" context only".4

There will be limits, however, on what out of work activities might be covered and the protection provided to businesses would not be all encompassing.  There will need to be some legitimate purpose for the relevant policy – most frequently perhaps the aim of the business to protect its reputation and interests.

Wilkinson-Reed v Launtoy Pty Ltd

Another recent Fair Work Commission decision of Wilkinson-Reed v Launtoy Pty Ltd5 demonstrates that not all communications on social media platforms are likely to be covered by employer social media policies.

In this matter, private Facebook messages (which were critical of a manager of the business), were sent by Ms Wilkinson-Reed (an employee) to a friend (and the estranged wife of that manager).  The manager was only made aware of the messages by his unauthorised use of a password to access his wife's Facebook account.

It was ultimately determined that comments made in the Facebook communications were intended to be private.  They were messages between Ms Wilkinson-Reed and the recipient only, as opposed to those made in the public domain on a Facebook "wall" or in a public Tweet for example.  Due to their private nature, the Commission determined that they did not breach the relevant employer social media policy (which included a requirement that employees not make any derogatory comments in relation to the business, colleagues or customers on the internet).

The Commission considered that any social media policy which attempted to control the content of private emails (or private messages as had occurred) between employees and third parties, sent in their own time and on their own equipment, would not be considered to have a sufficient connection to the employee's employment, to justify termination for breach of a social media policy.  On this analysis, had the conduct occurred during work hours or perhaps between employees, the position taken by the Commission may have been different perhaps.

Conclusion

Australian Courts have demonstrated a readiness to find defamatory, misleading and deceptive conduct arising from comments made via social media (whether in a private or business context) and award damages as a result.  With more Twitter-based defamation claims already at the pre-litigation stage, it is likely this trend will continue.  There is a balancing act between what a businesses' social media policy can and cannot control (as highlighted in the recent Fair Work Commission cases above).  As such, it is an area which needs some careful consideration and planning by businesses to ensure they are in the best position possible to deal with social media issues.