Fairfax decision forces focus on Twitter use

Journalists will come under further pressure to ensure their social media activity cannot be seen to be defamatory, in light of a Federal Court decision in which Fairfax Media was ordered to pay $200,000 in damages to federal Treasurer Joe Hockey.

The headline “Treasurer for sale” was found to have defamed Mr Hockey only when it appeared on newsagent posters produced by The Sydney Morning Herald and The Age and in two separate Age tweets.

The article as it appeared in The Age. The front page was found not to be defamatory to Mr Hockey
The article as it appeared in The Age. The front page was found not to be defamatory to Mr Hockey

The story associated with the headline concerned allegations Mr Hockey was offering lobbyists and wealthy businessmen personal access in return for political donations.

In a partial victory for Fairfax, Justice Richard White found the front page articles and the “Treasurer for sale” headline on the front page of both papers not to be defamatory, as the context of the story meant “ordinary, reasonable readers” were unlikely to have believed that Mr Hockey was acting corruptly.

“Much of Mr Hockey’s hurt and distress was said by him to result from publications which I have found were not defamatory,” Justice White said.

However, he said the newsagent posters and tweets, which by their nature had to be taken without supporting material that could clarify the meaning of the headline, defamed Mr Hockey. He said readers may have believed from reading that material Mr Hockey was corrupt in the absence of context suggesting otherwise.

This was despite the tweets carrying links to the story.

Fairfax was penalised $200,000 in total for the defamatory material.

“All of Mr Hockey’s other claims were dismissed,” a Fairfax Media spokesman said. “The articles were found to be well-researched and accurate.

“As today’s The Age and SMH reporting on donations in politics shows, Fairfax journalists remain fearless in their pursuit of information that is in the public interest.”

A senior lawyer contacted by The Newspaper Works highlighted the need to ensure adequate context around any statements that could be taken multiple ways, regardless of the platform. Twitter is a relatively new means of communicating, but it is likely that defamation action brought against Twitter users will become more common, the legal source said. It was important that tweets be factually accurate regardless of the informal nature of the medium.

Ensuring opinion is presented as such, and cannot be mistaken for a statement of fact, is also an important way to avoid defamation action, The Newspaper Works was told.

Minter Ellison partner Peter Bartlett, who advises The Age, told The Australian Financial Review that defamation actions involving social media were increasing. It also was  reasonably common for a journalist  to tweet in relation to articles published in print or online.

“The Hockey decision just reinforces the fact that those people who are tweeting need to be very careful that the tweet is consistent with the article as published and also itself is not defamatory,” Mr Bartlett said.

“The tweeter needs to be very careful and realise they can be sued just on the tweet.”

Meanwhile another defamation action involving Twitter between former Labor MP Mike Kelly and Liberal Party pollsters Lynton Crosby and Mark Textor was discontinued on Tuesday after Dr Kelly acknowledged the tweet was untrue and apologised.  Dr Kelly had accused the pollsters in a tweet four years ago of “push polling”.

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