Last week the treasurer Joe Jockey was awarded $200,000 in damages after a court ruled that Fairfax Media (publisher of The Sydney Morning Herald in which the headline appeared) had defamed him. But as Walter Adamson, general manager for KINSHIP Digital reveals in this opinion piece, it wasn’t actually the newspaper that defamed him rather it was the tweets linked with the article that were Fairfax’s ultimate undoing.

Last week the Australian treasurer Joe Hockey won a phyrric victory in a defamation case against a newspaper publisher not for the articles which were published about him but on the basis of tweets which linked to the articles. Although commentators said that there is little novel about the ruling and the “decision on these issues was unsurprising and orthodox given the principles of defamation law“ we are not so sure.

The “Twitter matters” 

Perhaps this case is “unsurprising and orthodox” only to those who have not actually read the judgment. We found a number of surprises, including these:

• The Court looked past a previous ruling which essentially said that by including a link a tweet should be read in conjunction with the linked material, unlike a billboard or newspaper poster. This Hockey judgment directly equated one of the defamatory tweets to a newspaper poster even though it contained a link;
• In the case of two tweets which were said to be essentially the same one was found to be defamatory and the other not; and,
• The Court made it clear that meta-data and surrounding web context were part of the consideration of a tweet – using the term “Tweet matter” to encompass the bare tweet plus the context which surrounded it.

In addition, in a small quirk of the case, the Court declared a computer-generated time-stamp on one tweet to be “clearly as mistake” which is an interesting snippet. Does it mean that in a case where time-stamps matter an opinion can override their factual base? It’s hard to image a Twitter time-stamp being incorrect although courts have made bigger calls before such as jailing Galileo Galilei for suggesting the earth revolved around the sun!

The Three Twitter matters

The Federal Court of Australia considered three tweets which it referred to as “Twitter matters”, these matters taking into consideration not just the text of the tweet but the surrounding context including links and summaries and images attached to the tweet. This is important because some of that context may have been generated automatically by Twitter itself e.g. summaries and images.

The key issue which the Court considered in relation to the tweets (in our lay terms) was whether the tweets stood alone in the same way that a poster for a newspaper article is treated separately at law from the article to which it relates. The Court had determined that the articles themselves were not defamatory but had determined that the newspaper posters promoting the article were defamatory in relation to a couple of the Treasurer’s imputations.

The Court also considered whether the surrounding context of the tweet, as mentioned above, was to play a role in determining whether or not each “Tweet matter” may be defamatory and even accounted for the possibility of this context being generated by Twitter itself. Its conclusion was that the context did play a role in the consideration of defamation whether automatically generated or not, and that the context should be taken into consideration as part of each of the three “Twitter matter” being reviewed.

The proposition was put that there was a fundamental difference between a poster and tweet in that a tweet provided a simple and fast way to link through to the article, and this “ease of access” to the article per se should be taken into account. However the Court rejected this submission with the following statement:

“The greater ease by which the reader may obtain access to the article in question is not a reason for concluding that all readers of the tweet will exercise that access. Some may read the tweet without going further.”

The final consideration was that the (first Tweet matter) “bare tweet” was defamatory, the (second Tweet matter) tweet with narrative context was defamatory, and the (third Tweet matter) tweet described as a “tweet and article” was not defamatory because the Court ruled that it would have been read “in conjunction with the hyperlinked article”.

Avoiding defamation – it is not clear cut but avoid “bare tweets”

Oddly enough the conclusion from this case does not seem clear cut to us, but we are not lawyers. The one clear cut conclusion is to not tweet “bare tweets” which are potentially defamatory. That means (and please ask your legal advisor) that even if you did not intend your tweet to defame a person that you will still be liable if the ordinary reasonable reader understood them in that way. If your tweet stands on its own and is without summary or hyperlink and is defamatory then you may have a problem.

Beyond “bare tweets” it is a little difficult to interpret the Court’s ruling as we do not see the actual evidence tendered – the actual Tweet matters. This is a very significant gap in our understanding as the first and second Tweet matter were found to be defamatory and the third found not to be defamatory. Here is what we derive from the judgment as best we can understand.

Tweet matter 1
The first of the Twitter matters was a “tweet” which, after a line identifying The Age’s Twitter account as the author, comprised only the words “Treasurer Hockey for sale” and a truncated hyperlink appearing as “theage.com.au/federal-politi…”. Below the text of the tweet, alongside options to “Reply”, “Retweet”, and “Favorite”, was another hyperlink using the words “View Summary”.

Context: This Tweet matter is different to the two others in that it does not have a Summary. The Court ruled that Mr Hockey’s claims succeeded in relation to the second Tweet matter because of the associated summary, which was missing from the first Tweet matter. However the Court ruled that the first bare tweet by does convey the same defamatory meaning as did The SMH poster on the basis that the greater ease by which the reader may obtain access to the article in question is not a reason for concluding that all readers of the tweet will exercise that access.

Variation from Tweet matter 3: Tweet matter 1 has a hyperlink to the article and Tweet matter three was considered to not be defamatory because it would have been read in conjunction with the article. So the offending part seems to be the actual specific text of the bare tweet itself “Treasurer Hockey for sale” which in the other tweets became “Treasurer for Sale: Joe Hockey offers privileged access”. This is unless the role of a “truncated hyperlink” played a role but this was not mentioned in the judgment so presumably not.

Tweet matter 2
The second Twitter matter was described in Mr Hockey’s pleading as a tweet containing a “summary” comprising the following words: Treasurer for Sale: Joe Hockey offers privileged access Summary Treasurer Joe Hockey is granting privileged access to a select group of business leaders in return for political donations totalling hundreds of thousands of dollars each year. This text appeared alongside a photo of Mr Hockey and above another hyperlink using the words “View on web”.

Context: The Court ruled that ordinary readers reading the summary would have regarded that as corrupt conduct, despite the “View on web” being a hyperlink to The Age article which was not found to be defamatory.

Variation from Tweet matter 3: This Tweet matter had a summary which the Court found to be defamatory. It also had a hyperlink “View on Web” to the article (which separately was not found to be defamatory) but unlike in the case of Tweet matter 3 this was not deemed to be something which would be read in conjunction with the tweet. It seems that the issue is with the actually summary alone.

Tweet matter 3
The third Twitter matter was described as a “tweet and article”. As tendered, this matter was the same as the second Twitter matter described above, but in conjunction with a copy of the Nicholls article as it appeared on The Age website.

Context: The judgment stated that “initial understanding of the reader on reading the summary itself would, for the reasons just given, have been that Mr Hockey was engaging in corrupt conduct. However, when the reader read the Nicholls article, that understanding would have been dispelled”.

Variation from Tweet matters 1 & 2: This Tweet matter differs from Tweet matter one by having the same explicit bare tweet text as Tweet matter two. As far as we can determine after carefully reading the judgment the only difference between this and Tweet matter two is that it appears “in conjunction with a copy of the Nicholls article as it appeared on The Age website”. We do not know if this means that it has a different Summary – our reading it that it appears to be the same as Tweet matter two. In which case the definitive difference is whatever “in conjunction with a copy” means. And that we do not know. It would be necessary to actually view the evidence to understand the difference between Tweet matter two and three, unless we are simply missing something significant in the judgment.

Difference between the defamatory and non-defamatory tweets

The crux of the learnings from this judgment relies on knowing the precise difference between Tweet matter two and Tweet matter three.

From our research it may be that this tweet below represents Tweet matter three the non-defamatory tweet if we substitute The Age article with The SMH one shown. It seems that Tweet matter two only contained a photo of Mr Hockey and “View on web” whereas Tweet matter three contained “a copy of the article” in which it can be seen that the issue is about membership fees being paid to the North Sydney Forum and outlining levels of membership. This context lead the Court to consider that this tweet and the article would be read in conjunction and hence non-defamatory as it considered the article to be non-defamatory.

This is speculation on our part and the actual evidence needs to be viewed in order to draw conclusions. The fact that the tweet below is still active and visible whereas the offending tweets are deleted at Twitter (but still in Google cache) suggests that this format is similar to Tweet matter three.

Conclusion

So it seems to us that there are a few surprising and unorthodox matters arising from this judgment, namely:

• How do we understand what “in conjunction with a copy” means in relation to Tweet matter three and why it differs from Tweet matter two which was found to be defamatory?
• What determines when a tweet might be deemed to be “read in conjunction” with an article since Tweet matters one and two had hyperlinks but for them this was not deemed to be a valid defence?Could we conclude that the strength of the wording of the tweet (Tweet matter one) or the Summary (Tweet matter two) overrides the concept of reading the article “in conjunction”?
• Since The Age was found liable for the defamatory nature of the Summary in Tweet matter two and these summaries may potentially be auto-generated by Twitter then how should we protect ourselves from this risk?

We look forward to others with specific legal knowledge to enlighten us. In the meantime do not tweet potentially defamatory tweets – always good advice.

This article originally appeared on www.which-50.com