Lani Bajracharya

Talk ain’t cheap: Social media, defamation and the $105,000 tweet

Lani Bajracharya

3 April 2014

New Media

Defamation is usually the last thing on a person’s mind when taking to the Twittersphere to unleash their daily vent of frustrations. However, with the internet making a potential media magnate out of every person with a smartphone or computer, it may be time for us to stop and think before firing off our next seemingly innocuous tweet.

Mickle v Farley

Mickle v Farley[1] appears to be the first defamation case in Australia involving Twitter to proceed to judgment and serves as a timely reminder to all Twitter users of the legal risks associated with social media use.  In a decision handed down late last year, Justice Elkaim ordered former student Andrew Farley to pay $105,000 in damages plus costs for making false allegations on Twitter and Facebook about Christine Mickle – a music teacher who taught at his former high school in regional Orange, New South Wales.

 

The defamatory comments were posted in November 2012 and appeared to be motivated by an unsubstantiated belief held by Mr Farley that Ms Mickle had played a role in his father’s exodus as Head of Music and Arts at the high school in 2008.  Mr Farley who was 20 at the time of the proceedings, graduated in 2011 and had never been taught by the plaintiff.[2]

 

According to Justice Elkaim, ‘the effect of the publication was devastating’ for Ms Mickle who had established a widespread reputation for herself in the country area regarding her capacity as a teacher and who had been ‘terribly hurt’ by the suggestion that she may have been responsible for any harm to or ill health of the defendant’s father. The devastation felt by Ms Mickle was further evidenced by the fact that she immediately took sick leave following the defendant’s comments and only returned to work last year on a limited basis.[3]

 

Award of Damages: The Break Down

 

Despite the offending Tweets and Facebook posts being withdrawn within a couple of weeks of publication and an unequivocal apology by Mr Farley, Justice Elkaim made a finding in favour of the plaintiff and awarded Ms Mickle compensatory damages in the hefty sum of $85,000. In making this award, His Honour took into account the nature of defamatory publications on social media, stressing that:

 

“When defamatory publications are made on social media it is common knowledge that they spread… Their evil lies in the grapevine effect that stems from the use of this type of communication.”

 

Furthermore, His Honour found that Mr Farley’s conduct in response to the case justified the addition of $20,000 in aggravated damages. This was due to the fact that:

 

  • Mr Farley had deliberately disregarded a letter sent by Ms Mickle’s lawyers shortly after the defamatory posts were made;
  • His seemingly sincere apology was manifestly contradicted by his attempts to argue the defence of truth. With respect to this second point, His Honour stated:

 

“The defence of truth when it is spurious is particularly hurtful to a person who has been the subject of such unsubstantiated allegations”;

 

  • When the defence of truth fell over, the defendant baselessly alleged the defence of qualified privilege; and
  • Mr Farley seemed to have abandoned his interest in the proceedings and did not appear at trial.

 

Lessons Learned

 

This case serves as a warning to all social media users that even the simple tweet can prove to have perilous and costly consequences for the imprudent. The fact that Courts are taking into account the nature of social media when assessing damages for defamation further emphasises the necessity that Twitter users exercise caution before hitting that ‘tweet’ button -– bearing in mind that tweets can be retweeted by followers and found on online searches, extending the potential reach of each publication.[4]

 

Mickle v Farley is also a reminder for those accused of defamation to think twice before attempting to argue the defence of truth, given that doing so has the potential to significantly raise amount of aggravated damages awarded if the defence is found to be raised spuriously.

 

With more Twitter based defamation claims already at the pre-litigation phase[5], it will be interesting to see how this area of law unfolds in the coming years. In the meantime tweet responsibly readers – who knows, your reckless tweet may be the most costly 140 characters of your life.[6]

 

 


[1] [2013] NSWDC 295 (29 November 2013).

[3] Ibid.

[5] For example, Liberal pollsters Mark Texton and Lynton Crosby’s Federal Court case against former Federal Labor MP Mike Kelly. To read more, see Mike Seccombe, ‘Is the Best Defence a Bigger Offence’ (18 December 2013) The Global Mail

[6] For more information on the impact of social media on defamation, please see Samantha Mc Hugh, ‘Recent Developments involving Twitter: practical implications for lawyers’ (2014) 17(1) Internet Law Bulletin 8; David Rolph, ‘Defamation by social media’(2013) Precedent (Sydney, N.S.W), No 117, July/August 2013: 16-21.