Twitter is being sued for defamation by a Melbourne man who was wrongly identified as the author of a “hate blog” directed at writer and TV personality, Marieke Hardy.
Hardy posted a tweet last year to “name and shame” Joshua Meggitt, the Melbourne man she incorrectly identified as the blog’s author, leading Meggitt to sue Twitter for defamation.
While Meggitt and Hardy have already apparently reached a (confidential) legal settlement, the broader issue of Twitter’s moral culpability and legal responsibility for allegedly defamatory tweets has now been brought sharply into focus.
This is the first time under Australian law Twitter has been sued for defamation, and it raises three interesting legal questions with respect to the liability of online intermediaries or platforms, such as Twitter, Facebook and YouTube.
1) It represents an application of the High Court’s reasoning in the case of Australian businessman Joseph Gutnick vs. the Dow Jones publishing firm. In that case, the High Court held that a cause of action for defamation arises in all places of publication. (That is, just because the Dow Jones is based in the US, it doesn’t mean Gutnick couldn’t bring the case to an Australian court.)
So even though Twitter is based in Silicon Valley, it can potentially be held liable for publication in Australia. This decision, while accepted law in Australia, has been very contentious overseas, particularly in the United States.
2) The case highlights the issue of whether disclaimers in the terms and conditions of various websites, such as the one on Twitter, provide legal immunity.
While such disclaimers will likely provide some protection, they will not provide absolute legal protection in all situations. Meggitt also has a strong argument in saying the terms and conditions will not protect Twitter against claims made by non-Twitter users.
3) It is one of the first cases in which the platform – in this case Twitter – rather than the person that actually made the defamatory comment has been sued.
This is novel because, in the United States, section 230 of the Communications Decency Act provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by others.
In Australia we do not have an equivalent immunity for platforms such as Twitter, Facebook or even Google. In Australia, platforms will have to rely on either the defence of innocent dissemination or schedule 5, clause 91 of the Broadcasting Services Act 1992 to avoid liability.
While both these provisions will clearly apply to internet service providers, they are unlikely to extend to provide immunity to platforms such as Twitter or Facebook. That means that, under Australian law, it is possible that platforms such as Twitter and Facebook could be held liable for posts made by their users.
If that is indeed the result in this case, Australian defamation law will need urgent reform. Online intermediaries and platforms should not be held liable for the actions of their users.
It is simply not practically possible for these platforms to filter all the content posted to these sites. If the law did require platforms to do so, they would either be forced to pass the considerable costs of doing so on to their members, withdraw from Australia altogether or change the very nature of their platform.
Moreover, if Australian law did place this burden on platforms, such a regulatory framework would be a powerful disincentive to innovative new services being developed and based in Australia.
The simple solution could be that, where defamation takes place on the internet, the individual who posted those defamatory remarks should be held responsible. Alternatively, if the legislature wishes to impose an additional level of liability upon online intermediaries and platforms, it should do so only where such an intermediary and platform fails to take account of a defamatory comment once they have been given notice.
A notice and takedown regime has similar antecedents in existing legal frameworks. With respect to copyright, the US Online Copyright Infringement Liability Limitation Act (a part of the DMCA) and section 116AG of the Australian Copyright Act 1968 limits, in certain circumstances, the remedies available against carriage service providers to taking down infringing material, terminating a specific account and/or disabling access to an online location outside Australia.
With respect to defamation, Australia already has detailed provisions for offers to make amends. A scheme of this nature has the potential to protect an individual’s legal interests while fostering collaborative communication on the internet. It is a potential reform that deserves further consideration.
In essence, the law is still struggling to keep up with rapid advances in technology over the past few decades, and this case has the potential to expose some weaknesses in Australia’s existing defamation law with respect to online intermediaries and platforms.
It will definitely be a case to follow (both on and off Twitter).
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Comments (20)
Giles Pickford
Retired, Wollongong (logged in via email @bigpond.com)
Australia Post cannot know the content of letters posted. Whereas in Twitter, Facebook and UTube the content is visible to anyone with a computer.
We can't argue in favour of a facility that has the power to ruin a person's life and sometimes lead to suicide by saying that technological progress is more important than a reuptation or a life.
It isn't and it never will be.
All the platforms that carry such an enormous load of hate are psychopaths. The have no conscience, no empathy, and no regrets. That is the definitiion of a psychopath. Let us fight the hate by insisting on the ancient virtue of forbearance.
Gavin Moodie
Principal Policy Adviser (logged in via email @telstra.com)
A fiduciary duty is a type of legal duty, indeed the highest relationship of trust and confidence. Typical fiduciary relationships are those between a solicitor and client, executor and beneficiary, agent and principal.
The relation between a publisher and their author is not a recognised fiduciary relationship and I think it unlikely to be recognised as such in future. Still less would the relation between a publisher and their reader be recognised as fiduciary.
A publisher does not have a general legal responsibility not to harm others. It has a responsibility not to publish material that is defamatory, obscene, treasonous, etc. It also has a general duty to exercise the care that a reasonably prudent person would exercise in similar circumstances. But if a publisher isn't negligent they are not generally liable for any harm they may cause others.
Gavin Moodie
Principal Policy Adviser (logged in via email @telstra.com)
I think Twitter is relevantly different from Australia Post in being the means for the publication of material as well as its transmission.
However, I think Twitter and Facebook are similar to on line discussion forums such as the one we are now using on the Conversation. While the Conversation doesn't seem to moderate comments before publication, on line forums hosted by some mainstream media organisations are moderated, much to the annoyance of well behaved users.
If prompt removal is accepted as a defence to a defamation action against on line forums, should a similar defence be available to newspapers' letters to the editor? Otherwise a publisher wouldn't have a take down defence to a reader's comment published on dead trees but would have the defence available to the same reader's comment published electronically to potentially more readers.
Joseph Bernard
Director (logged in via email @parasoft.com.au)
I Agree with Free Speach and the right to Publish my views..
Why should My comments be struck down because any random person does not agree?
Now because the words published are my views, then i should wear the responsibility for my views. The courts or twitter abuse feedback is where we should move the forum of debate of who was wronged.. At worse case Twitter can be order or decide that it should remove specific offending material.
Dan Buzzard
Researcher (logged in via email @danscomp.net)
Also, let's not forget the fact that Joshua Meggitt has already reached a settlement with his defamer. I might of had sympathy for him if he wasn't just another arsehole looking for a cash grab.
Fortunatly Twitter is in a jurisdiction (US) that holds it exempt from the liability of what it's users post. However I'm not a lawyer and could be wrong on that.
Gavin Moodie
Principal Policy Adviser (logged in via email @telstra.com)
Good point Giles.
I think the stronger argument for Twitter is free speech.
Defamation is a false statement that harms someone's reputation. But I think you are concerned not by statements that just harms a person's reputation, but by statements that ruins a person's life. This would argue for a new offence which has a higher level of injury to the aggrieved and a correspondingly higher level of responsibility on its author and publisher.
Giles Pickford
Retired, Wollongong (logged in via email @bigpond.com)
Dear David
We are not talking about piracy We are talking about the tsunami of malicious comment in the on-air media. We can sue a newspaper for delivery of a greivous libel. Why is it OK for the same crime to happen world wide on the web?
Dan Buzzard
Researcher (logged in via email @danscomp.net)
Because the plaintiff already has his payout. Now he wants more, I believe it's called greed.
Giles Pickford
Retired, Wollongong (logged in via email @bigpond.com)
Dear Tobias
OK let's take it as a given that the only publisher is the author.
Why is it then permissible that an anonymous libel can be maliciously published? Why can't all these other platforms insist that an author has an identity?
It is just not right that it is legal to viciously libel a known person from a position of anonimity. Give the author a name and known address and let him go ahead and libel people and take the consequences.
That is what The Conversation does.
Joseph Bernard
Director (logged in via email @parasoft.com.au)
Next lets hold Australia Post accountable for abusive letters sent to a person.. or drugs that have been sent in the post.. Twitter is no different to australia post, it is just a delivery system..
Bruce Moon
Bystander! (logged in via email @imap.cc)
Joseph
I see a difference.
Australia Post is not a publisher, merely a carrier.
A publisher is an entity established to make information available to the public.
A carrier is merely conveying goods between two parties (without necessarily knowing the contents).
A publisher knows the nature of the content published, and has both a fiduciary and legal responsibility not to harm others when publishing.
For you to argue that twitter is merely a carrier, not a publisher, is to say that…
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Tobias Cohen
(logged in via Facebook)
It seems like a mistake to treat Twitter as a publisher. It's a piece of technology which allows people to self-publish. It would be like holding the suppliers of the ink used to print The Australian responsible for every word printed in it. Ridiculous and completely impractical.
Gavin Moodie
Principal Policy Adviser (logged in via email @telstra.com)
No one here is suggesting that views be suppressed because some one disagrees with them. The argument is that a statement should not be published if it is likely to unjustifiably harm another, and if it is published, that the person harmed has a recompense.
Some harms can not be recompensed. Many people who make statements such as me do not have the resources to recompense anyone who may be harmed by them.
For both these reasons the publisher is usually also made liable for any harm caused…
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David Healy
Retired (logged in via email @optusnet.com.au)
The European Court of Justice ruled a few days ago that social networks such as Twitter cannot be required to install an anti-piracy filtering system.
It looks like Joseph and the Court both see Twitter in the same light. It's a delivery system.
Gavin Moodie
Principal Policy Adviser (logged in via email @telstra.com)
An action for a tort such as defamation must be brought in the jurisdiction in which the wrong took place.
In Dow Jones and Company Inc v Gutnick, Dow Jones uploaded the defamatory material in New York but it was downloaded in Victoria. In that case the High Court of Australia held that defamation did not occur at the time of publishing but when someone read the publication and thought less of the individual who was defamed. The High Court held that Gutnick could sue for defamation in Victoria…
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Joseph Bernard
Director (logged in via email @parasoft.com.au)
When we read an article that is posted on theconversation it not unreasonable to expect that published Articles need to have passed a level of scrutiny before they are published. There is a level of expectation that is pre-framed by the publisher’s reputation, eg a website in this case.
If, however, i read a tweet, it is just that! a tweet. Nothing more than a random sms , that is viewed live from an online news ticker board with 0 .. 1000s of people at the end of each message.. However, If in doubt most people turn to google to research a topic.. Why would we hold google accountable for finding and making accessible “wiki leaks” or “Child porn”.. it could be argued that it suits both the public and the system to look into and research public records. This Access to information will only improve with the roll out of NBN.
what an exciting time in the history of man. The Internet is surely a greater step than that made on the moon.
Giles Pickford
Retired, Wollongong (logged in via email @bigpond.com)
Is it possible that the great rushing tide of information swishing around the world will end up being just as meaningful as the Moon landing?
When they told the American philosopher, Henry David Thoreau, that the electric telegraph had connected Houston and Boston, he answered that he found that very interesting, but asked if Houston had anything to say to Boston? He added that he doubted that Boston would have much to say to Houston.
Aniel Kerkvliet
(logged in via Facebook)
I thought this was a very interesting read. Intuitively it seems crystal clear that Twitter can't be held responsible for the actions of its users, however, as Peter Black points out, the legal framework fails to provide a legal basis for this clear argument. I found Black's reasoning well constructed and it inspired me to research this case further and write a paper on it that I submitted to the CommUnity 2012 online conference on Networks and Communities. For the full text of this paper please follow this link: http://networkconference.netstudies.org/2012/defamation-on-the-internet-under-the-hammer-in-an-australian-courtroom/
Giles Pickford
Retired, Wollongong (logged in via email @bigpond.com)
The problem is not Twitter, or Facebook. The problem is the anonimity of the slanderer or libeller.
I don't care what anyone says about the Law. It is simply wrong for a person to be driven to suicide by a person who is hiding.
If you want to murder a person's reputation, then tell us what your name is. Or are you such a coward that you can't?
Aniel Kerkvliet
(logged in via Facebook)
A fair comment, however in this case the inflammatory comments were delivered through Twitter, an environment where the authors are not anonymous. Saying that I do realize that at the same time it is of course not that hard to assume a pseudonym on Twitter with a bogus email account.