Has anything changed, as I wrote of this in 2014. Back then in The Conversation by David Rolph, cited a successful Tweet defamation case of the judgment in Mickle v. Farley.
Judge Elkaim makes the point that unlike mass media outlets – where you have circulation figures or the ratings to inform you – it is difficult to know with social media platforms how big the audience is. Not a truer word was said.
I wrote back then of the danger of social media and cited the Sydney Morning Herald written by Christopher Knaus about a series of court cases over a 2011 tweet by Federal MP Mike Kelly went back to the Federal court and this statement: “The High Court found against Dr Kelly, and ordered him to pay over $100,000 in costs.”
In that article I stated that regardless of the ultimate outcome of this case, what it illustrates is that what proves later to be an unfortunate or hasty tweet can become an expensive exercise.
The point was made that this was nothing new. Many a book has had to be pulped by a publisher either before or after a court case, where a set of words was shown to have been in some way defamatory or that they were shown to have been less than the whole truth or even implied such.
It's a tricky business in any such public format – Email, Internet, Blog, Tweets, Flyer, Book, Magazine, Newspaper – whereby someone feels wounded to the heart.
Moreover outcomes can be unpredictable. It might cost you your house, or your reputation, possibly your job, becoming in effect unemployable, being deemed a serious risk, never again allowed such public responsibility, losing your marriage and family … there is much at stake.
On the other hand, as Edward Barton noted in the 17th century, that when good men do nothing, evil prevails. Therefore there are times that demand great courage to speak out and one of the reasons why our Parliamentarians have the legal freedom in speak in the Parliament without fear of prosecution.
What we see here is a balancing act. Major publishers have lawyers on tap who specialise in this area, whereby the fine line between 'comment' and 'defamation' is carefully gauged. Long drawn out expensive court cases have resulted over such matters.
The recent film “The Post’ illustrates the competing efforts at both ends of the spectrum. In that case the Washington Post published which led to Watergate and the ultimate resignation of President Nixon.
Now, it may not matter in the great scheme of things where neighbours or friends fall-out and something untoward is written in the public space, but for those feel they have been targeted unfairly and an adversarial team of lawyers who only get paid if they win, the stakes can soon get out of hand.
Costly in many ways
In recent months we've seen this reported across the nation with well healed neighbours fighting it out in the courts let alone the politicians whose every word is carefully assessed in this growing litigious arena. Recently, a judge criticised a litigate who refused to settle and ended up with much less than the offered settlement and that entire amount was gobbled up in legal fees.
There is much more besides. A tweet is restricted to a specific number of words. How anyone one of us might couch those words is the critical factor. The lesson is to be very careful what you tweet.
Comment is nonetheless protected. Every commentator in whatever forum they use, whether that is a newspaper, on-line news, magazine, blog, whatever …. is necessarily able and legitimate to 'comment' on whatever the subject matter.
Comment is not only essential to democracy, it is the life blood of a fair and free society and therefore many a lawyer has advised a client that 'Comment' is both fair and legitimate in a robust liberal society.
There is nonetheless a fine line between all these issues and hence the need to carefully analyse what is written. The major city newspapers have key note Comment writers who specialise in such matters and for any would be Comment writer, it might not be such a bad idea to start reading these writers who put together articles that carefully spell out the unfolding drama. They are poignant reading and politicians ignores them at their peril.
Guidelines
In the cited The Conversation article David Rolph gives some basic guidelines. Social media platforms like Facebook and Twitter make it easier for people to share or retweet. This means that it is easy for people to spread defamatory material and also difficult for people to know how far and wide their reputations have been damaged.
In the current environment, the best advice is to think before you tweet, bearing in mind that what you tweet can be retweeted by your followers and can be found by online searches.
He points out defamation law applies to every form of communication, from private conversations to national broadcasts and beyond. Whenever one person is talking about another person in front of other people, there is a risk of defamation.
For those who write Comment article David Rolph offers this salutatory wisdom: “... truth and comment, but you have to prove what you have said is true and, if you are making a comment, it has to be based on fact. In practice, these defences can be difficult to establish.”
One of Well-Being Australia’s mission roles was to help a small community with an on-line weekly news and after 8 years it closed last month. The two people running it had run their course, a season had come to an end.
But there was also a sigh of relief as whatever might be said, with a too smart-by-half tricky lawyer - could bring anything of that nature down and those of good-will around them. In the end it was too risky. Facebook today is a better option for community inter-action as long as the administrator has 24/7 protective surveillance of the site.
Dr Mark Tronson is a Baptist minister (retired) who served as the Australian cricket team chaplain for 17 years (2000 ret) and established Life After Cricket in 2001. He was recognised by the Olympic Ministry Medal in 2009 presented by Carl Lewis Olympian of the Century. He mentors young writers and has written 24 books, and enjoys writing. He is married to Delma, with four adult children and grand-children. Dr Tronson writes a daily article for Christian Today Australia (since 2008) and in November 2016 established Christian Today New Zealand.
Mark Tronson's archive of articles can be viewed at http://www.pressserviceinternational.org/mark-tronson.html