Twitter and the norm police

This blog post is inspired by an online discussion I had with Julie Posetti, Jason Wilson and others today. A conversation that began about Posetti's question on how to deal with corrections in the online world evolved into a discussion about defamation on Twitter. It was Wilson’s contention that when we tweet we publish and we should therefore consider our words with great care before sending them out in the world. I agreed but didn’t see it as a huge problem. Wilson saw it as an issue of how to resolve tensions between online behaviour and community standards expressed in laws. He may be right. The growth in cases such as the Facebook Six shows that online life is increasingly affecting life away from the computer. (photo by Derek Barry)

The conversation with Wilson reminded me of remarks he made earlier this year in relation to Internet indiscretions in the Quadrant hoax affair. Wilson said that bloggers and commenters who discussed the identity of the hoaxer could have ruined the reputation of someone if they happened to be wrong in their very public opinions. At the time, he recommended a book called The Future of Reputation by a US legal scholar Daniel Solove which discusses some of the problems in this area. Tonight I finally got around reading the opening and last chapters of Solove’s book which is available as a free download.

The Future of Reputation is informed by issues at the boundary of privacy and free speech. The evangelists of the Internet would have it that free speech trumps everything. This is arguable perhaps in the US with its First Amendment provision but certainly not supported by the law of defamation in Australia. Here if you say something that damages a person’s reputation you better be able to prove what you are saying is true because the presumption of innocence does not apply to publications. If you write something down in a public context, then you are liable for your actions.

The Internet has the ability to enforce social attitudes of approval or disapprovals, or norms, as they can be called. The enforcers are the “norm police” who confront errant behaviour in order to keep the norm strong and effective. With a billion and a half online, there is as much a need to be as accountable for actions in cyberspace as there is in meatspace. But the ease in which moral outrage can spread across the Internet can create a mob-driven police state.

Because blogs have not been around for long there is a double danger. There is unprecedented power to spread messages compounding an underdeveloped set of norms to keep people in check. Journalists have ethical codes that act as restraints but bloggers generally do not. Google has replaced the private investigator as a way of finding out everything about people. Fragments of public data about us are strewn across the Internet (btw should anyone go Googling me, I am not to be confused with “Derrick Barry”, an American gentleman who is apparently the world’s best Britney Spears impersonator. I lack his singular talents).

The Internet is a cruel historian. The social practice of gossiping, spreading rumours and shaming have all moved to the Net. There they transform from “forgettable whispers” to the scarlet letter of permanent memory. But protecting people’s reputation may mean curtailing other people’s free speech. The law needs to take a wise middle path that does not chill speech but still prevents people from injuring others online. Social networks are a marvellous invention of creativity and connection but they redefine what is meant by private lives. We grapple with reputation, gossip, shame, privacy, norms and free speech and weave them into social tapestries of immense complexity.

Solove recommends lawsuits as a way of seeking redress if reputation is sullied but the law should encourage informal attempts at resolution. Privacy needs to be re-defined for its properties of accessibility, confidentiality and control. Free speech can be reconciled with privacy by allowing anonymous stories. But Internet authors should remove defamatory material if requested. Often this is all that is required; there is no additional financial impost.

There are downsides. Products like Reputation Defender act to “clean up” an online reputation but also could be used to whitewash inconvenient truths. According to Solove, the law is “a subtle instrument but not quite a violin”. It is puny compared to norms and these will largely determine how privacy will be protected in the digital world. As President Obama recently reminded American school students, individuals who write on blogs and Twitter and Facebook should always think about the impact of the words they use. Some day they may come back to haunt the person who wrote them.

East Timor presses charges against Jose Belo

East Timorese journalist Jose Antonio Belo has returned home from Australia where he was seeking support against an upcoming prosecution over his attempts to expose official corruption. Belo is the editor and founder of popular Timorese weekly newspaper Tempo Semanal. He is facing a six year jail sentence after being charged with criminal defamation. Last year Belo wrote an article that suggested Justice Minister Lucia Lobato had improperly awarded government contracts to friends and business contacts. The article was based on text messages the newspaper had received which suggested corrupt dealings by the government minister.

While the trial date has not been set, the East Timor and Indonesia Action Network (ETAN) called on East Timor’s prosecutor-general to drop the criminal defamation charges against the paper and its editor. On 26 January, John M. Miller, ETAN’s National Coordinator said neither should have to face charges under an “obsolete and repressive law”. Timor’s repressive defamation laws were inherited from its old Indonesian masters. ETAN says the Timorese government had proposed decriminalising defamation under a new penal code. However the new code has not yet been enacted, although drafted several years ago. He now urges the state to drop the charges. “Rather than attack the messenger,” he said, “Timor-Leste's leadership should support freedom of expression and encourage a dynamic, investigative media”.

Tempo Semanal published the offending article entitled “SMS texts evidence: Minister for Justice Gives Herself And Friends Projects” on 12 October 2008. In it, Tempo claimed they had received SMS texts which were exchanged by the Minister for Justice Lucia Lobato and Timorese and international businessmen. The text messages were discussions for a tender to construct a new fence for the Becora prison, the acquisition of uniforms for prison officers, and the design, issuance and management of national identity documentation. The issue was that the million dollar discussions took place before these projects were sent out for public tender.

The minister argued Belo violated her privacy and journalists’ ethical code by publishing the text messages. The government served notice to Belo in December he was facing defamation charges. However the Office of the Prosecutor-General refused to give Tempo Semanal a copy of the charges claiming the relevant documents were confidential. On 19 January, the prosecutor’s office questioned him for three hours. Belo said he does not any money or any resources to fight the charges. “So we can't fight a person who has influence [and] who has money,” he said. “I presume it is very, very difficult to win this case in the court."

This is not the first time Belo has faced imprisonment. He was a member of the clandestine resistance movement against Indonesian rule and was arrested in 1995, aged 23, after being involved in a peaceful demonstration calling for the release of independence leader Xanana Gusmao. Belo spent the next 18 months in jail. Afterwards he fled to the mountains to join the guerrilla fighters. He was captured in 1997 and spent more time in jail. He was released before the 1999 referendum that voted for independence and he went on to report the subsequent Indonesian massacres.

Since then he has worked as a freelance correspondent and cameraman with Associated Press, the ABC, SBS and Channel Seven. In 2006, he founded Tempo Semanal with $500 of his own money, a $1000 donation and one computer. For the first six months, his staff worked without pay. But its circulation grew rapidly and he now employs 20 staff. Belo accuses the government of not genuinely wanting freedom of speech in East Timor. “They don't want the journalists to do some hard stories, that's why they go after me.” he told ABC’s PM this evening. “And if they get me then other journalists are not going to be brave to do the hard stories.”

defamation and free speech: impacts for public relations

Defamation is a published statement which damages someone’s reputation or holds them up to ridicule. A person’s reputation is a fundamental human right which must be balanced against the public interest of freedom of speech. This post will examine how these conflicting rights collide and what are the positive and negative implications for public relations.

Defamation law is costly in terms of reputation, time and money. Libel is a permanent form of defamation where the burden of proof is entirely on the defendant. In the McLibel case, defendants had to prove every point from primary sources such as official documents and direct witnesses. Such onerous requirements meant that most McDonalds’ critics backed down and apologised rather than go through the prohibitive expense of libel action. But the McLibel Two fought the case as a freedom of speech issue. They forced McDonalds to defend their operations in great and embarrassing detail. Although McDonalds won the three year case on a semantic judgement, they were refused costs and the case became the biggest corporate PR disaster in history. A newspaper headline of the day best captured their dilemma: “Big Mac pays high price for win over small fries”.

But defamation law need not always prevent free speech. Organisations get more of what they want when they give up some of what they want. Grunig and Hunt’s two-way symmetrical model is the most effective model for public relations because targeted publics benefit as much as the programs’ sponsors. The model is underpinned by the PRIA code of ethics whose first point says members “shall deal fairly and honestly” with all their publics. Reputations are integral to contemporary public relations. Defamation law is a vehicle to guard practitioners and clients reputations. But it should also be best PR practice to maintain the reputation of their publics when publishing any material about them.

Nonetheless, good intention is no defence to defamation. The test for defamation is whether an ordinary, reasonable person would consider a publication to be defamatory. Ordinary, reasonable people so found in the Nixon v Slater & Gordon case. The plaintiffs were identified in a digitally altered photograph (ironically used to promote the dangers of growing litigation). The photo imputed an unintentional meaning of malpractice. Media releases are the most frequently used public relations tactic. The public relations industry exists largely to manipulate news media and claim authorship of the news. Therefore public relations officers need to be guard against defamatory content in their published releases. Australia does not have a bill of rights or statutory protection of free speech which can lead to a “chilling effect”. Defamation action is extremely expensive, especially if appealed, and can cost hundreds of thousand dollars in legal fees for both parties. Practitioners need to be aware of the three valid defences to defamation: truth, fair comment and privilege. But as the McLibel case showed, a legal win is not always a public relations win.

Remembering McLibel

This coming June sees the 10th anniversary of the legal judgement in the longest trial in British legal history – the McLibel trial. The verdict ended an astonishingly unequal battle between the $US60 billion a year fast food giants McDonalds and two supporters of an independent collective called London Greenpeace. They were Dave Morris, an ex-postman and single parent and Helen Steel, a gardener and part-time bar worker. After a 3 year trial, 130 witnesses and an 800 page ruling, Justice Bell ruled the pair had "exaggerated" some of their claims against the food giants. McDonalds won a pyrrhic legal battle but badly lost the PR war. They were widely deemed corporate bullies, lost millions on the case and British Channel 4 news called it the most expensive and disastrous public relations exercise ever mounted by a multinational company.

London Greenpeace was formed in 1971 as an independent collective active in environmental and social issues. In 1985 it launched a campaign against McDonalds in sympathy with a growing worldwide opposition to the hamburger industry. The roots of the trial date back to a fact sheet produced by London Greenpeace in 1986. The fact sheet brought together arguments around the impact of global trading on the third world, damage to the environment, lack of nutrition, exploitation of children, animal welfare and poor employment conditions. None of these criticisms were new.

Whenever confronted by these allegations, McDonalds' tactics have been to step up their own propaganda and use libel laws to intimidate opponents. In the past they had forced critics such as Channel 4, BBC, the Guardian, the Scottish TUC and the Vegetarian society to apologise or back down. The problem with the libel laws is that the burden of proof is on the defence who must demonstrate every point from primary sources such as official documents or direct witnesses. In most cases it was easier to apologise than to risk a major financial loss.

McDonalds first sent private investigators to infiltrate London Greenpeace meetings and then served libel writs on five members in September 1990. The defendants would not get legal aid and were advised to apologise. Three reluctantly did so. But Steel and Morris refused and decided to mount their own defence. Their argument was that free speech was on trial as was the right of individuals to voice criticisms of powerful business interests.

The task ahead was mammoth. The duo needed to master court procedures, legal jargon and 60,000 pages of documents and technical details. Meanwhile McDonalds hired Richard Rampton QC, one of Britain’s top libel barristers. Mt Justice Bell heard the trial of David v Goliath without jury. McDonalds successfully argued the link between diet and cancer was too complex for a jury to assess. The decision was upheld by the Court of Appeals who refused leave to appeal to the House of Lords.

But Morris and Steel were not dispirited. Instead they hit back with a counterclaim. McDonalds had issued a press release and 300,000 leaflets nationwide calling them liars. The counterclaim put the burden of proof on McDonalds to show that the original leaflet was untrue. The trial began in 1994 after 28 pre-trial hearings. Rampton predicted it would last 3 weeks, instead it went for 3 years. McDonalds alleged every claim in the fact sheet was libellous and defending each claim made the case wide-ranging with over 180 witnesses. The defendants had to prove packaging ended up as litter, advertising works on children and McDonalds pays low pages.

Evidence was completed in July 1996. The parties made closing speeches four months later. By now it was clear that McDonalds and the economic system that served them that was on trial. Company executives were forced to testify under oath and made many damaging admissions. Steel and Morris were encouraged by public donations and commentators such as Auberon Waugh were describing the case as “the best free entertainment in London”.

In 1995, an increasingly desperate McDonalds attempted a secret settlement with the defendants. The defendants wanted McDonalds not to sue anyone again over similar statements, apologise to those they have sued in the past and make a substantial payment to a third-party. McDonalds refused. Meanwhile in court, they went back on an earlier commitment and withheld copies of essential court transcripts to the defendants and the media. The pair was forced to pay the full commercial cost to a transcript company at $US700 a day to continue.

In Justice Bell’s verdict, he ruled substantial parts of the criticism were true based on evidence. McDonalds won the other parts of the judgement based on legal and semantic interpretations of the fact sheet. But the judge still found McDonalds do exploit children, are culpably responsible for animal cruelty and the company pays criminally low wages. The judge ruled McDonalds counterclaim leaflets were defamatory and unjustified and a move to discredit the defendants. But somehow he ruled this was legally permissible as a right to “self-defence” to protect the company from attack. McDonalds claimed damages and costs. The judge awarded 60,000 pounds damages (half of what McDonalds demanded) but failed to award costs despite spending $US 20 million on the case.

McDonalds' efforts to silence opposition had totally backfired. 2 million more of London Greenpeace’s “What’s Wrong with McDonalds” leaflets were handed out in the UK alone. Protests extended to 24 countries. At the conclusion of the trial, the campaigners held an international “Victory Day of Action” outside McDonalds' stores across the world. McDonalds meanwhile refused to comment on the verdict and its US headquarters claimed it was a British issue.

Finally in 2005, Helen Steel and Dave Morris won a case at the European Court of Human Rights. The court ruled they did not receive a fair trial as guaranteed under the Human Rights Convention, because of the lack of legal aid available to libel defendants, and that their freedom of expression was violated by the 1997 judgement. The pair was awarded £24,000 damages, plus costs. Joshua Rozenberg, legal editor of the Daily Telegraph thought the judgement was significant. "I think the government will have to make legal aid available to people accused of libel who can't otherwise defend themselves”, he said.

defamation law in Australia

Defamation is a boundary where free speech and reputations collide. In Australian law, defamation is a tort, or in other words, a civil wrong. Whenever we say or write something that damages another person’s reputation, there is a possibility that we may infringe the law of defamation. For media practitioners the law is an unavoidable hazard when dealing with people whose livelihood depends on their reputation. However it may be possible to defame with “good reason”. The purpose of this essay will be to describe a brief history of how these law came into being, then show how the laws of defamation work, before showing what defences are plausible against defamation. The essay will conclude with a brief discussion on how the laws affect the Internet.

Historically, reputation was regarded as part of a person’s spiritual being and defamation proceedings were held by England’s ecclesiastical courts. It came under the ambit of the common law courts in the 16th century where the key principle was observed: defamation was something the defence needed to prove. Colonial NSW put the law in legislative form in the Defamation Act of 1847. Although Australia was federated in 1901 it was not granted the power to deal with defamation, therefore each state was at liberty to frame its own laws. It took the commonwealth 105 years to finally enact uniform defamation laws.

As well as eliminating the insidious practice of forum shopping, the defence need no longer prove it is a matter of “public interest” as was the case in NSW or “public benefit" as was the case in Queensland, Tasmania and the ACT. However the basic imputation of truth remains. While defendants must prove the words are true, plaintiffs must show that the published words would make others think less of them. Plaintiffs must also show that the publication referred to them. Even if plaintiffs are not explicit named, they can sue if they show they meet the description of the defamed person. The foundation case of E. Hulton and co v Jones proved that plaintiffs can be defamed unintentionally even when using a fictitious name. The lesson for journalists is that if you must defame, then name.

There are a number of valid defences to defamation. As well as truth, the 2006 laws establish defences based on justification, contextual truth, absolute privilege, fair reporting, qualified privilege, honest opinion, defence of innocent dissemination and triviality. Justification means that the defendant proves that the imputations are substantially true. Contextual truth means that a defendant can justify the publication of a defamation because a more important or related truth can be proven. Absolute privilege is available only to those speaking in court or parliament whereas those who report their statements “fairly and accurately” are covered by the fair reporting defence. Qualified privilege implies a reciprocal duty and assumes the defendant has a “reasonable interest” in publishing the material. Reporting on public meetings attracts qualified privilege. Political qualified privilege was established by the Theophanous v Herald & Weekly Times case and clarified by Lange v ABC that Australians should have an interest in information concerning political matters. The defence of innocent dissemination is designed to protect subordinate publishers such as Internet Service Providers (ISPs).

The innocent dissemination defence shows that the newer communication technologies are not immune from defamation laws. The Rindos v Hardwick case established a precedent to show that defamation laws apply on the internet. It is impossible for ISPs to be aware of information content prior to publication. Clause 91 (1) of Schedule 5 to the 1992 Broadcasting Services Act (Cth) provides a statutory defence for an ISP which hosts internet content in Australia and who was not aware they were hosting a defamatory publication. However liability in a defamation case attaches to everyone who takes part in a publication, whether intentional or not. The new uniform 2006 laws have adopted the English common law defence by protecting subordinate publishers.