Thursday, 10 September 2015

Tweets aren't cheap

This case illustrates the great care that must be taken when drafting short, sharp publications intended for dissemination on either social or traditional media platforms.


In Hockey v Fairfax Media Publications Pty Limited, handed down on 30 June 2015, Justice White of the Federal Court of Australia found that Fairfax Media had defamed Federal Treasurer Joe Hockey and awarded him $200,000 in damages. The judgment makes for interesting reading.

The case concerned articles, tweets and a poster published by the Sydney Morning Herald (SMH), The Age and The Canberra Times. The articles stated that Mr Hockey was providing 'privileged access' to a 'select group' in return for donations to the Liberal Party. The tweets and poster acted as sign-posts to the articles through use of the phrase 'Treasurer for Sale' and similar.

Mr Hockey sued the papers' corporate arm, Fairfax, for defamation in three proceedings, which were heard together.  He asserted that the publications contained defamatory imputations (e.g. accusations or meanings), including that he had acted corruptly (the relevant imputations).

Did the publications contain the relevant imputations?


Fairfax conceded that the relevant imputations would be defamatory, but denied that the articles, tweets and poster conveyed them. The contest between the parties turned on this point.

In determining whether the articles, tweets and poster conveyed the relevant imputations, Justice White adopted the customary 'reasonable person test' as his starting position. His Honour queried whether the 'ordinary, reasonable reader would have understood the matters complained of in the defamatory senses pleaded' and, in doing so, made several handy comments about the nature and disposition of our hypothetical friend (see paragraphs 63 - 73 for more on this).

Ultimately, his Honour concluded that the ordinary, reasonable person would not have understood the articles to have conveyed the relevant imputations about Mr Hockey, but would have understood two of the tweets and the poster to have done so.

The key distinction between the articles, tweets and posters, in his Honour's judgment was the context that the authors of the articles were able to provide in drafting them. His Honour found that individual passages of the articles, when read in isolation, could be understood as conveying a defamatory imputation.  When the articles were read as a whole, however, his Honour found that those passages were 'cured' - that the ordinary, reasonable reader, after reading the articles in full, would arrive at a more nuanced conclusion that did not defame Mr Hockey. 

The tweets and posters were a different story. Without the benefit of context, Justice White found that two of the tweets and the poster were undoubtedly defamatory. His Honour did not consider that the hyperlinks contained within the two relevant tweets provided sufficient context since, on the evidence, a substantial number of people viewed the tweets without clicking on them. The third tweet that contained an embedded version of the article was, however, deemed to contain sufficient context and, for that reason, was not regarded as defamatory.

Defence of qualified privilege did not apply


The statutory defence of qualified privilege, and the extended form of qualified privilege recognised in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 were found not to apply because, in his Honour's view, the publications were not reasonable, and appeared to have been motivated by an improper motive that would prevent the defence from succeeding.

His Honour considered the application of the defences to each of the articles, tweets and posters. Mr Hockey conceded, as part of this consideration, that the subject matter of the articles, tweets and poster was a matter of public interest, and that imputations contained in the publications were conveyed in the course of providing the public with information on that subject. The application of qualified privilege therefore centred on the third element of the defence - whether, in all of the circumstances, Fairfax's conduct was reasonable.

His Honour considered a range of factors, some from statute and others from common law (see paragraphs 227 - 230 for more on this), as part of this enquiry. Ultimately, his Honour  concluded that Fairfax had not acted reasonably in publishing the articles, tweets or poster. 

The most relevant consideration in respect of the articles was the steps Fairfax had taken to obtain a response from Mr Hockey before publishing them - steps which, in his Honour's view, were inadequate. The most relevant consideration in respect of the tweets and poster was the availability of alternative, non-defamatory modes of expressing the same point -  that Fairfax could have used words like 'Hockey: donations and access. Herald investigation', or other non-defamatory phrases, without losing effect.

His Honour also considered whether, in the event qualified privilege were deemed to apply, it would be vitiated by the presence of an improper motive by  Fairfax. The issue of an improper motive arose from several emails and texts sent between Fairfax editors and journalists, which included an instruction that the story be 'nailed to a cross'.  His Honour concluded, on the basis of this exchange, that the articles, tweets and poster had been actuated by SMH editor-in-chief, Darren Goodsir's, personal animus towards Mr Hockey, and that qualified privilege would therefore have been defeated, if it had applied.

To refresh your memory on best practice for members of the VPS on social media see our previous blog When is it ok for a public servant to tweet political opinions?

If you would like advice about this case, or about defamation law and its application to you,  please  contact:

Solicitor

Managing Principal Solicitor

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