An Australian defamation ruling will probably affect how Australians’ tweet from here on out.
In this post we’ll review the case, and then examine the likelihood of a U.S. court delivering the same verdict.
The Tweets That Launched an Australian Defamation Lawsuit
Last May, Fairfax Media (an Aussie outlet) ran a story about Australian Treasurer Joe Hockey’s alleged complicity with, what sounds like, a modern-day political simony scheme. According to Fairfax Media, a Sydney business group supposedly bestowed inappropriate “access” on Hockey, presumably in exchange for political favors.
As part of efforts to promote the story, Fairfax released two tweets. One said, “Treasurer Hockey for sale,” followed by a link; the second tweet, which also included a micro-summary of the story, read, “Treasurer for Sale: Joe Hockey offers privileged access.”
In response, Hockey filed an online defamation lawsuit.
Both sides presented their arguments, and Justice Richard White ruled: “There would have been a large number of persons, perhaps in the tens of thousands, who read the bare tweets and who did not read further.”
A Fairfax Media spokesperson explained to the press: “The Court upheld Fairfax’s defense of the articles and found them not to be defamatory. Mr Hockey’s claims were only upheld in respect to the publication of the SMH [Sydney Morning Herald] poster and two tweets by The Age because they lacked the context of the full articles.”
So, what does this all mean? In the Fairfax Media Twitter defamation case, the court ruled that the investigative article, about Hockey, wasn’t defamatory, but the tweets were libelous because they lacked clarifying context.
Would Hockey Have Won This Twitter Defamation Case In A U.S. Court?
Two win a defamation lawsuit in the United States, at the very least, plaintiffs must meet the following requirements.
Falsity: Most statements aren’t defamatory if they’re true. Claimants must prove that the defendants made false declarations of fact.
Harm: It’s not enough to demonstrate falsity. Typically, plaintiffs must show that the speech caused material or reputational damage. (The exception to this rule is defamation per se, which you can read more about here, in the sidebar.)
Negligence or Actual Malice: Intention is a big part of defamation law. To win cases, plaintiffs must prove that the defendants either acted negligently or intentionally released the inaccurate information.
So, taking the parameters of U.S. defamation law into consideration, would Hockey have won this Twitter legal battle on American soil? Probably not. Especially since the court found that the article, which the tweets referenced, was not defamatory.
Differences Between U.S. and Australian Defamation Law
Like other Commonwealth nations, Australian defamation laws are more plaintiff-friendly than those in the United States, which is why some stateside clients file overseas, circumstances permitting. That said, so-called libel tourism is universally frowned upon; and though it has been done, getting any court to accept a foreign defamation case is no easy task, especially since the 2013 libel reforms.
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