Developments in Twitter Defamation case.

By Sarah Joseph

My blog on Sunday regarding this issue had an unprecedented number of hits for the Castan blog, indicating a great level of interest in this story. The hits may also reflect that relatively little attention has been paid to this issue in the mainstream media, hence more reliance on blogs and especially the #twitdef stream on Twitter.

The following is essentially an update on developments since the weekend. You will have to read the original post in order for the following to make sense.

1. An audio tape of Asa Wahlquist’s comments at the conference has emerged, and has been posted on the ABC website. Posetti’s tweets largely reflect Wahlquist’s statements, and the Australian’s Caroline Overington has described them as “a fair summary”, though Jonathon Holmes believes that there may be some anomalies.  If this case was ever to come to trial, an interesting question could arise regarding the requirements of fair reporting of public events, the inherent limitations of 140 character tweets, and whether those limitations mean that meaning is conveyed differently by tweets because followers of tweeters are aware of those limitations.  Fascinating fodder for lawyers, but very stressful for the protagonists at the heart of the controversy.

2. The Australian’s commentary has, thus far, focused on short descriptive pieces and narrower legal issues (where potential applicable defences for Posetti were not detailed), rather than the broader implications of the scenario for free speech, my main concern in my initial blog. The Australian is certainly interested in free speech, at least when it concerns its own, such as in the case of the forced delay in its publishing of a Saturday magazine story due to a ruling by Judge Lex Lasry in Victoria’s notorious Robert Farquaharson trial.

3. It has been alleged (see update to a Crikey story here) that the Australian media editor, Geoff Elliott, contacted another tweeting academic, Jonathan Powles, over a tweet that Powles posted on Friday when this whole story broke. Powles apparently used the #iamspartacus tag to threaten the newspaper, and Elliott said that the paper would refer the matter to the police. But that tag is well known amongst the twitterati (sorry, had to use that word), and even in mainstream media, as an ironic humorous response to a ludicrous overreaction by British authorities who brought the force of UK antiterrorism law down on one Paul Chambers when he tweeted a “threat” to an airport due to his frustration over the likelihood that he would miss a flight. Elliott’s reaction, like those of the UK authorities in Chambers’ case, just seems disproportionate. I find it hard to believe that Powles’ statement could really be construed as a meaningful threat to anybody, rather than a mere statement of disgust at or at least support for Posetti’s plight (just as #iamspartacus was a message of solidarity for Chambers’ plight). Referral to the police seems, perhaps, an action which further chills the medium of Twitter.

4. The most concerning development perhaps is a non development. As of Wednesday morning, it seems that Chris Mitchell has not issued a writ against Julie Posetti. But he has made no statement (yet) regarding his intentions. True, he doesn’t have to. But, having publicly proclaimed on Friday that he would sue her, his silence now leaves the threat as a Damoclean sword hanging over her head. We are left in a situation where Mitchell’s opinion of the legal quality of the tweets is published and well known (including, by the way, his scathing statement that Posetti, a “journalism lecturer and academic does not understand the laws of defamation”, an assertion which was published without, apparently, Posetti being given a chance to comment), while Posetti has stated that she is constrained in her ability to respond to the allegations.  This seems to manifest the chilling effect I mentioned on Sunday.  After all, a legal case, even if it is ultimately won, sucks up resources in terms of money and emotions.

It is often said that the best way to “defeat” or at least challenge “bad” speech is to counter it with “better” speech. This option, alas, doesn’t always work and is not always available. But I believe it was available in this instance to Mitchell, who could perhaps have published a rebuttal to the relevant tweets in the national newspaper of which he is Editor in Chief.  The option was also available to Elliott, who could perhaps have published a story on why he may have thought some of the Twitter support for Posetti was aggressive, inane or otherwise wrong. Use of the sledgehammer of the law (or threats to use it) seems disproportionate and perhaps extraordinary when one considers that both men work in the media, normally not a supporter of Australia’s relatively strict defamation laws (see the comments attributed to the Australian on defamation laws towards the end of this article (the original editorials do not seem to be available via publicly available websites).  And, despite all of my concerns about the chilling effect for Posetti and Powles, the episode has brought forth a tidal wave of national and international opprobrium (again, mainly on Twitter) towards the Australian, a reinforced focus on the nature of its coverage of climate change, and eagle eyes ready to point out possible defamation in its content. Free speech is indeed hard to keep down, and it seems the Australian has poked quite a powerful and occasionally unruly bear.

UPDATE at 2pm:  Geoff Elliott’s explanation of the #iamspartacus interaction is at:  http://bit.ly/gjLWK1.

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