As more companies adopt social media as a business strategy tool they are having to consider whether they should exercise restraint in what they post because there is a very real possibility that an individual could be defamed and take legal action under Australia's defamation laws.
The Sydney Morning Herald (SMH) (a href="http://www.smh.com.au/technology/technology-news/man-sues-twitter-over-hate-blog-20120216-1tbwg.html") recently published a story involving Melbourne man, Joshua Meggitt, who is now suing Twitter for defamation under Australian law.
Originally, Meggitt was wrongly named by writer and TV identity, Marieke Hardy, in a tweet as the author of a hate blog about her. This was re-tweeted by some of Hardy's followers and other Twitter users.
Meggitt's lawyer Stuart Gibson told the SMH, ''Twitter are a publisher, and at law anyone involved in the publication can be sued. We're suing for the retweets and the original tweet - and many of the retweets and comments are far worse.''
The SMH reported Hardy and Meggitt recently agreed on a confidential legal settlement (believed to be about $15,000 according to the paper) and Hardy made a public apology on her blog but Gibson has served a legal notice on Twitter, as the publisher of a tweet by Hardy last November.
This is the first time the San Francisco-based social media company has come under the Australian legal radar.
“The first amendment in the US is a very significant protection for credulous speech. So it is very difficult in practical terms to sue for defamation in the US, whereas it is much easier to do so in Australia,” University of Sydney school of law associate professor, David Rolph, said.
This is not the first time a foreign company is being sued in Australia in favour of its laws.
In 2010, The Guardian UK published that American-registered games company, Evony, sued British games blogger, Bruce Everiss, for libel (http://www.guardian.co.uk/technology/2010/mar/31/evony-libel-case-bruce-everiss).
He took up the case in Australia over a chain of blog posts.
Everiss' lawyers had questioned the choice of pursuing the case in Australia instead of the UK as neither did Everiss live in Australia nor was Evony headquartered there.
Even though the case was eventually dropped, it was taken up on the basis of Everiss' blog having readers in the country.
Professor Rolph said Australian defamation laws for all forms of social media are no different from newspapers, radio, television, writing letters, talkback radio or any other forms of citizen journalism.
“We do not have a set of business or citizen journalism laws, only a set of defamation laws that apply to every media platform. Even though different media platforms look different, and different users can participate in the media in quite different ways, there is only one set of laws applying to all of them,” he said.
Australian National University college of law associate director, Matthew Rimmer, said there has been a lot of debate about whether Australia's defamation laws should include the interaction of defamation law and freedom of speech.
He said the issue of intermediary liability, in terms of to what extent should intermediaries like Twitter and blogs be responsible, arises.
Professor Rolph said at the moment, the obligation of social media sites is if they are made aware of defamatory material that’s posted.
He said there is a possibility for them to protect themselves and regulate the content in the event that they are aware of it.
“However, they have no responsibility to monitor defamatory material because there is far too much material that’s posted on Twitter or Facebook,” he said.
According to Rimmer, there is a question to what is the best remedy as the purpose of engines like Twitter and blogs is to be used for a wide range of social communication and business purposes.
“They take the view that they do not censor user content except in exceptional circumstances, and I guess that emphasises that the users of service should be responsible for what content they post,” he said.
He added that there is a fine line between ethical and legal issues and some laws have to be reformed to deal with new technological environments, particularly with micro-blogs, blogs and social networking sites.
“We tend to be in quite a different cultural and technological matrix from the era of mass media, publishing, television and radio broadcasting. We need to rethink our rules about defamation laws for this kind of new environment,” Rimmer said.