In the pop culture classic film “Mean Girls”, the Plastics have their Burn Book – a book where they record mean observations about their school community. It’s the revelations of the Burn Book that leads to chaos in the film.
Think of social media as the Burn Book on steroids.
This is the first of a two part series on defamation and social media. Social media and particularly Twitter present challenges as it allows instantaneous communication by anyone with a social media account. I will not be discussing here the possibility of Twitter being culpable as a publisher in Australia.
In 2011, the Supreme Court of Western Australia has commented on the distinction between traditional and electronic media in the decision of Prefumo v Bradley, noting users post online without proper consideration of their actions:
Twitter, blogs and other forms of social media such as Facebook impact on the way people communicate and the language they use. Communications through those media often lack…formality and careful consideration…that will effect both what is regarded as defamatory and the potential for harm.
What is Defamation?
Defamation law protects individuals’ reputations and assumes that all people are of good character unless the opposite is proved. A negative statement concerning someone’s character may not necessarily be defamatory – it depends on factors such as to whom it was sad and the context in which it was said.
Twitter currently has 645,750,000 active registered users worldwide, who tweet a daily average of 58 million messages,¹ leaving users potentially exposed to defamation proceedings because the 140 character limit leaves little space for context. Social media is mistakenly perceived as an authority for information by some, and a user of some celebrity is definitely influential.
There have been a number of recent defamation matters in Australia and the United Kingdom which have arisen from Twitter.
Cairns v Modi  EWHC 756 (QB) was the United Kingdom’s first Twitter defamation litigation. The parties were a former international cricket player and a commissioner of the Indian Premier League cricket. The decision examined the publication of the defamatory tweet (which for obvious reasons, will not be re-published here). For the purposes of the trial, it was agreed that 65 of Mr Modi’s followers would have read it, and it was accepted there would have been substantial publication beyond that through re-tweeting.
The trial judge, Mr Justice Bean observed that “the poison tends to spread far more rapidly” when comments are published by anyone with a significant profile and following on Twitter, and is therefore able to go viral almost instantly to a global audience. Once publication was established, the trial judge applied the usual principles of defamation and found Mr Modi’s tweet defamatory of Mr Cairns. Mr Cairns was awarded £90,000 for damage to his reputation.
In The Lord McAlpine of West Green v Sally Bercow  EWHC 1342 (QB), Mr Justice Tugendhat found the tweet sent by the Ms Bercow bore a “natural and ordinary defamatory meaning” and in the alternative, an “innuendo meaning” of the same effect . The tweet emanated from a television program which made serious allegations of child abuse against an unnamed politician from the Thatcher years. Other defandants had apologised and settled before trial. Ms Bercow argued that the phrase “ * innocent face * “ was to be understood in a neutral rather literal manner, maintaining that she had noticed Lord McAlpine’s name was trending on Twitter and was simply asking why. Her defence was rejected.
In 2011, Australian media personality Marieke Hardy settled out of court with the individual whom she incorrectly named as the author of a hate blog against her by paying him undisclosed damages and issuing a public apology.
How can you protect yourself?
1. Think before you tweet!
2. Disclaimers on your profile offer no legal protection.
3. Think before you tweet!
4. Ordinary people can be sued for defamation.
5. Think before you tweet!
Sally Bercow said it best in her statement after the ruling which cost her undisclosed damages and legal costs of more than £100,000:
Today’s ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory even when you do not intend them to be defamatory and do not make any express accusation. I have learned my lesson the hard way².
Yolanda is Leaders in Heels’ Social Media Editor. This is an edited and modified extract from a recent paper she wrote on Defamation and Social Media as part of her Masters in Law, Media and Journalism studies.