Defamation, Twitter and Free Speech

Sarah Joseph

An extraordinary thing happened in Australia’s media community last week. Julie Posetti, a journalism lecturer and prolific tweeter, attended a journalism conference in Sydney. One of the speakers was Asa Wahlquist, who used to write climate change articles for the Australian.  The Australian has been under some fire recently for its perceived conservative bias (see, eg, here and here, with associated responses by the paper here and here). Of relevance, its coverage of climate change has been criticized for allegedly giving too much oxygen to climate scepticism.

Here the story gets murky. Posetti tweeted what were purported to be Wahlquist’s public comments at the conference.  The instantaneous reporting of public comments via Twitter is in fact very common.  The brouhaha following Posetti’s tweets is not.  The Australian’s editor-in-chief, Chris Mitchell, said on Friday that he will sue Posetti for defamation as her tweets seem to indicate that he was telling writers what to write about climate change. Wahlquist denies that Posetti’s tweets properly represent her comments. Posetti is presumably constrained in what she feels safe in saying right now:  let us assume that she believes that her tweets were a fair representation of Wahlquist’s statements.  Even if they were, Mitchell claims that there “is not protection from the law in repeating accurately allegations, falsely made”.

Mitchell’s assertions regarding the law are true … sort of.  One can perpetrate the tort of defamation by republishing, accurately, someone else’s defamatory statement, even if that statement was made in public.  But there are defences, including a whole area of complex law under the banner of “qualified privilege”. I am not a defamation law expert, but a review of the “defamation” entry in Halsbury’s Laws of Australia indicates to me that Posetti has a good chance of raising a successful defence.  In coming to this conclusion, I am assuming that there was no malice in her tweets:  this blog proceeds on that basis.

There are many curious aspects to this scenario. Mitchell is concerned about Posetti’s republication of material via tweet, yet those tweets were themselves repeated by his own newspaper (along with Crikey and the ABC), vastly escalating their impact. In fact, this phenomenon even has a name: the Streisand effect. Furthermore, the media reports the potentially defamatory statements of others all the time. Consider Mark Latham’s public assertions that Kevin Rudd was the leaker against the ALP in the recent federal election campaign. Rudd denies this, which implies that Latham’s statements were defamatory. Yet Latham’s assertions were all over the media, including the Australian.

The implications of the Mitchell/Posetti scenario for free speech are serious.  As noted above, it is this author’s opinion that Posetti’s tweets fall within available defences to defamation.  Furthermore, there is an implied freedom of political communication in the Australian Constitution, and that freedom enhances Posetti’s position. The nature of the coverage of a major topic like climate change by a major newspaper is a relevant political issue for the purposes of that freedom, especially given that climate change and the Australian ‘s general editorial line  are so prominent in current public debate.

But the chilling effect of the threat of defamation action here seems disproportionate and potentially wide-ranging. The editor of a major newspaper is threatening legal action against a lecturer for tweeting tweets which I believe are likely to fall within applicable defences.  An alternative response, perhaps, was for his newspaper to publish his rejection of the perceived contentions of her tweets.  It will surprise me if this matter escalates to the point of a court case.  If so, Mitchell risks the setting of a precedent which, if it goes his way, could boomerang badly on his newspaper.

However, the  mere threat of legal action has sent an almighty shudder down collective spines on Twitter, many of whom lack the resources to defend themselves (and most tweeters certainly lack the backup of an organization like News Ltd, as is enjoyed by Mitchell).  Latika Bourke, a Canberra-based political journalist (and prolific tweeter), has explained the potential chilling effect nicely (in of course, a tweet), noting that the circumstances could “challenge Twitter’s whole being, and the spirit in which it was formed”.