The invention of social media was probably one of the simultaneously best and worst inventions ever for human connections and interactions, and for professionals who work in media, like journalists and reporters. On the one hand, you have the ability to talk with any one of your friends, family members, cool strangers, and spread your content to as many eyes as possible! On the other, you have the people who would much rather abuse this grand power of being online, and who think it’s a really good idea to lie about someone and absolutely ruin their reputation. Luckily for those that have rubbish rumours or harmful hearsay spread about them, that’s completely illegal, and it’s called ‘defamation.’
What’s defamation anyway?
Defamation is a legal term that’s used when someone publishes something that ruins someone’s reputation or livelihood – this can take many forms, like in a Facebook post, a tweet, a YouTube video, a book, whatever it is, as long as it’s published. That’s a very broad statement, so I’ll give an example of what defamation is. Say I leave a review about a restaurant that I just went to – had a lovely time, but when I got home I wrote a review and I said that I got stabbed by the waiter, and that the head chef poisoned our food. That would be a lie that could be very harmful to the reputation of the restaurant, the waiter, and the head chef, and was clearly done with malicious intent; so therefore, this is clearly defamation.
Now for a real world example with reviews. In the case Cheng v Lok, a lawyer called Mr. Cheng won $750,000 when Ms. Lok posted a negative review about his law firm on Google. They were complete lies, yet Lok kept submitting negative and false reviews, under different names, even after she was given an official legal warning. The first time she got a warning, she simply changed her name on the review. When she got a notice that she had to attend court as she was defaming Cheng, she just changed it again. It wasn’t until Cheng lodged a complaint with Google that she deleted it, but she then just uploaded another one using her father’s name, Peter, who Cheng knew for the past 10 years. As a result of these bad reviews, Cheng lost 80% of his clients, and a financial advisor for Cheng reported that he lost around 86% of his income. The court found that the reviews were posted to not only destroy Cheng’s reputation, but his livelihood, and Lok was ordered to pay a total of $750,000.
So what’s that got to do with journalists?
In the case of Cheng v Lok, the misuse and abuse of social media by Ms. Lok resulted in her owing Mr. Cheng $750,000. While media professionals were not directly involved in this case, there are incredibly important lessons to be learned from it. Firstly, and by far and away the most important aspect in anybody’s lives, particularly journalists, is to not make some stuff up. This lesson goes especially for when a news organisation is reporting about another news organisation, a current or former politician, or a prominent public individual: not only would making up your story, or posting things recklessly that result in financial or reputation loss be defamation, there can be conflicts of interest depending on what the report is about, and you could even lose your job.
Say you’ve already published the lie though, what then? Well, if you’re caught in a lie and you’re a media professional, then you should backtrack your statement, assert the truth, and apologise for your lies in the same manner and platform as when you published the initial lie; take, for example, Peta Credlin. When Kevin Rudd had started an online petition using the official Australia government website for a Royal Commission into media diversity, she claimed that Kevin Rudd’s petition was actually a “data harvesting exercise,” despite the fact that you can’t actually access a signatories’ email if you use the Australian government website, which prompted a letter from Mr. Rudds’ lawyers the following day.
For a case that more directly concerns journalists, we look to the case of Hockey v Fairfax Media Publications Pty Limited. In this case, former treasurer Joe Hockey sued the Sydney Morning Herald, The Age, and The Canberra Times, for publishing articles entitled “Treasurer for Sale.” These articles made the correct assertion that the Liberal Party was partaking in fundraising that involved, among other things, sitting in on a boardroom meeting alongside Mr. Hockey and others; in addition, Hockey was suing Fairfax over a poster from the Sydney Morning Herald and two tweets from The Age. In the outcome of the case, the suit over the articles themselves were rejected, with the reason being that a reader of the articles would not believe that Mr. Hockey himself was partaking in a corrupt form of fundraising, as the print versions directly state that this form of fundraising isn’t illegal, it should just be questioned; and the online article reports solely on the fact that this method of fundraising was being probed by the Independent Commission Against Corruption.
However, the claims concerning the poster and the two tweets were awarded $120,000, and $80,000 respectively. This is due to the nature of the tweets and the poster; the poster had no further context that the articles themselves provided, with just the words “Exclusive: Treasurer For Sale / Herald Investigation,” with the court finding that just the poster alone had the implication that the then Treasurer could be bribed and was corrupt; the two tweets from The Age were also found to be defamatory – the first tweet had just the words “Treasurer for Sale” alongside a link to the online article. The court found that the “bare tweet,” that being the tweet just by itself, which disregards that it has a link to the article that was found to be not defamatory, was defamatory in the same way as the poster – it offered no additional context, and an ordinary reader would assume that Mr. Hockey could be bribed, and was therefore corrupt. The second tweet included a summary through a “View Summary” button, stating, alongside a link to the non-defamatory article and a photo of Mr. Hockey, “Treasurer for Sale: Joe Hockey offers privileged access.” Once clicking on the “View Summary” button, it continues, “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 was also found to be defamatory, for the same reasons as the poster and the first tweet.
What can journalists and other media professionals learn from this?
From this case, journalists do not necessarily have to worry – again, the articles themselves were not defamatory, as they clearly stated that the fundraising they were describing was not corruption, just that they thought that it shouldn’t happen because it’s a lot of money. However, social media teams, as well as advertising teams, should take more care in how they format and create their content; it doesn’t matter if the tweets had links to the article, if the tweet itself does not elaborate on what they mean to say, which in this case was that paying a fair chunk of money for boardroom meetings is not in the public’s best interest, the tweet should not be defamatory. Perhaps instead of saying “Treasurer for Sale: Joe Hockey offers privileged access,” one could instead say “Treasurer for Sale: Joe Hockey’s big-buck boardroom event,” or something along those lines. This way, you keep your big tagline, the “Treasurer for Sale” bit, it’s still short and catchy, and it fits within the 140 character limit. Then, for the summary, “Treasurer Joe Hockey is participating in fundraising that charges members up to $22,000 for boardroom events, receptions, and policy forums. The question is, is this really worth it – for the good of our democracy?”, or something to that extent.
Well, how can I not be sued?
It’s more simple than you’d think. From the case of Cheng v Lok, we learn that even if something’s just posted to a review site, if it’s false and/or damaging to a person’s livelihood and reputation, you can be sued for defamation. To avoid being sued when you’re the average social media user, don’t post lies, and especially do not just change your username and pretend like that fixes anything. If you’re a journalist, take care when reporting on politicians past and present, or public figures. These are things that should seem rather basic and like it doesn’t need to be said – we’ve all been told since we were able to talk to not lie to people, and if there’s nothing nice to say, to not say it at all – but cases like Cheng v Lok prove that not all of us listened to that advice. Regarding the case of Hockey v Fairfax, journalists, when writing articles, do not have any big learning lessons; just keep doing what you’re doing, maintain journalistic integrity, and report the truth. However, social media and public relations teams should take much more care in how they word their tweets; it doesn’t matter if the tweet had a link to an article that elaborated your point, your initial tweet should be written with just that tweet in mind, with no other link or anything taken into account.
Understanding defamation law can be complex at first, but as long as you follow the basic principals of telling the truth and to not be malicious, you’ll be a better social media user and reporter than if you were to not. Plus, you don’t want to pay someone a cool $80,000 for two careless, less thought-out tweets.
Thank you for reading,
Rory Allerton.
Rory Allerton's BCM Site 