SOCIAL MEDIA AND DEFAMATION

Tweets capable of conveying defamatory imputations


The use of Twitter and other social media for marketing and promotional purposes – whether  it be the promotion of a new product, the dissemination of news or entertainment services, or the development of a personal or corporate brand - requires careful scrutiny to limit the risk of exposure to a claim in defamation. 

The recent court decision in Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 demonstrates that Courts will award significant damages for defamatory tweets. As explained in the case summary below, the Federal Court in Hockey v Fairfax made an award of $80,000.00 in compensatory damages for two tweets comprising three words each. 

Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652


In Hockey v Fairfax Media, Federal Treasurer Joe Hockey brought three separate proceedings in defamation against the publishers of the Sydney Morning Herald, The Age and the Canberra Times in respect a number of related print and online matters published on 5 May 2014.

The matters subject of Mr Hockey’s claims in the proceedings included: 

1. A suite of articles published in the print versions of the Sydney Morning Herald, The Age and the Canberra Times; 

2. Online versions of the articles published on each of  the newspapers’ online platforms; 

3. A ‘placard’ poster published by the Sydney Morning Herald to promote the articles, which included in large bold font the words “Treasurer for Sale”;  

4. Two tweets published by the Age on its twitter account, which comprised only the words “Treasurer for Sale” and “Treasurer Hockey for Sale” and contained hyperlinks to online versions of the articles referred to above. 

Mr Hockey alleged that the published matters conveyed a number of defamatory imputations, including the imputation that he ‘corruptly [sold] privileged access to himself to a select group which [included] business people and business lobbyists in return for donations to the Liberal Party.’ (1) 

At trial of the proceedings, Justice White found that only the tweets and the Sydney Morning Herald poster conveyed defamatory imputations, and that Mr Hockey’s case failed in relation to the remainder of the publications. 

In making this finding, Justice White held that the Articles, when read in full, would not have been understood by readers as alleging that Hockey had engaged in a form of corrupt conduct – rather, readers would have understood that Mr Hockey had participated in a form of political fund-raising, which, while perhaps undesirable or inappropriate, was nevertheless legitimate. (2)

Conversely, Justice White found that the tweets and posters, when read as discrete publications and without reference to the articles to which they related, would have been understood by readers as conveying, inter alia, that Mr Hockey was  ‘taking, or willing to take, payments which were influencing his decisions as Treasurer of the Commonwealth.’  (3)

Importantly, Justice White did not accept The Age’s submissions that the meanings conveyed by the two tweets should be considered in the context of the hyperlinked articles. Justice White found that a number of Twitter users would have read the tweets ‘without going further’ and that the tweets should be regarded as a discrete publications. (4) 

The Age and Sydney Morning Herald contended that they had a defence of qualified privilege in respect of any imputations conveyed by the published matters, both at statute and common law(5). 

However, The Age and Sydney Morning Herald failed to satisfy the Court that their conduct, in publishing the matters complained of, was reasonable in the circumstances. As a result, the defences of qualified privilege failed. (6)

In making his finding on qualified privilege, Judge White had particular regard to:

1. The fact that there were a number of readily available alternative wordings which could have been used by the Sydney Morning Herald or the Age in the poster and tweets to promote the articles, without conveying the defamatory meanings alleged;   and

2. The inadequacy of the steps taken by the publishers to obtain Mr Hockey’s comment in relation to the matters subject of the publications. (8)

In obiter, Justice White found that if the alleged defamatory imputations were found to have been conveyed by the articles themselves, the respondents would not have been entitled to rely on the defence of qualified privilege, as their conduct in publishing the articles was also not reasonable in the circumstances. (9)

Furthermore, Justice White found that the Sydney Morning Herald had been actuated by malice, in publishing the articles. 

Justice White found that Darren Goodsir, the Editor in Chief of the Sydney Morning Herald, was predominantly motivated by a desire to ‘get back’ at Mr Hockey, for Mr Hockey’s previous insistence that Sydney Morning Herald publish an apology and retraction for a matter published by the Sydney Morning Herald in March 2014. (10)

Justice White awarded Mr Hockey damages in the sum of $120,000.00 in respect of the poster and $80,000.00 in respect of the two tweets. (11) 

In assessing damages, Justice White took care to distinguish between the reputational loss suffered by My Hockey by reason of the publication of the articles – which were not found to be defamatory – and the loss which arose from the publication of the tweets and poster. (12)

Justice White did not find that Mr Hockey was entitled to an award of aggravated damages. 

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FOOTNOTES

1.   Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 at [5]
2.   Ibid at [123] to [125]
3.   Ibid at [168]
4.   Ibid at [207] to [209]
5.   Ibid at [217]
6.   Ibid at [243] to [248]. In respect of the common law defence of qualified privilege, Mr Hockey pleaded both ordinary common law qualified privilege and the extended form of common law qualified privilege formulated by the High Court of Australia in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520. Justice White held that the ordinary form of qualified privilege did not apply, as the publications in question were not made to a limited number of recipients (at [218] and [373]). As discussed above, Justice White held that the Lange form of qualified privilege could apply, but failed due to the inability of the Respondents to establish the element of reasonableness. 
7.   Ibid at [243] to [244]
8.   Ibid at [247]
9.   Ibid at [357] to [360]
10.  Ibid at [412] to [413]
11.  Ibid at [517]
12.  Ibid at [468] to [469]
13.  Ibid at [514]

© Stephens Lawyers and Consultants 27 August 2015

Stephens Lawyers & Consultants have a high level of expertise in the Australian Uniform Law of defamation.  Our lawyers represent leading companies and organisations in defamation law matters – including litigation and mediation. 

For further information contact: 

Katarina Klaric
Stephens Lawyers & Consultants 
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Melbourne VIC 3000 
Phone: (03) 8636 9100 
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Authored by Harrison Ottaway and Katarina Klaric

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