HOCKEY V FAIRFAX MEDIA PUBLICATIONS PTY LTD: Case analysis

Author: Iloka Benneth Chiemelie
Published: 11th April 2017

Introduction

For years, the classic case of defamation has dwindled the legal system especially as only a few of such cases are recognizable, traceable and prosecutable due to a number of limitations. In the Hockey v Fairfax Media Publications Pty Ltd[1], Joseph Benedict Hockey, was awarded $200,000 in damages with respect to a certain defamatory publications made by Fairfax Media Publications. This case does bring to light some vital questions in terms of defense of a qualified privilege and the impact that defamation law can have on political communication freedom within the Australian context as well as references to the global world view. In the case, the posters and tweets made by Fairfax media accused Mr. Joseph of “corrupt practices that involves soliciting and accepting payments and influencing his decisions as Treasurer of the Government of Australia in favor of individuals that bribed him.

In the case, the Federal Court Justice Richard White did reject a number of articles presented by Hockey in relation to pleaded imputation of bribery and corruption being conveyed by these articles (both print and online). However, the judge preceded to find a Sydney Morning Herald posters consisting of the word Treasurer for Sale and two similar words in an Age tweet that was authored by the editor in chief of the Herald, Darren Goodsir, to be maliciously published. His Honour however declined to ward aggravated damages in this case by stating that: The refusal of Herald and the Age to offer Hockey apologies was justifiable in relation to majority of the publications. In essence, this case will presented detailed analysis and comprehensive critique in order to justify or abhor decisions made by His Honour in reference to Australian e-commerce law. One thing is for sure, a single tweet can result to numerous defamatory claims as demonstrated in this case.

“Treasurer for Sale”, an iteration only in context

This case is in reference to different publications made in May 2014 by The Sunday Morning Herald and The Age, which were focused on fundraising activities by the Liberal Party that were linked to Hockey. The details of the story – which the court found to be accurate[2] - was that Hockey was providing direct access to himself at some events to people that made donations to a political fundraising body known as the North Sydney Forum.

Following publications, the article was promoted with the iteration of the headline, “Treasure for Sale”, which Mr. Hockey reportedly found to be offensive[3] considering the effects it can have on his present political image and future political goals. The evidence provided by Hockey at the court confirms this[4].

While Hockey also has issues with the articles themselves, findings form the court does indicate that they were not defamatory. In any case, placards that advertised the articles and tweets that were linking to the articles, were defamatory. This is because they contained the word “Treasurer for sale”, and “Treasurer Hockey for sale”[5].

The court’s decision were based on established principles that placards are to be viewed as discrete publications, which must be treated differently and independently from the articles that such publications were promoting. In his judgment, the Federal Court judge quoted: Glass JA in World Hosts Pty Ltd v Mirror Newspapers Ltd,[6] where it was noted that placards are placed in such special position for the obvious reasons that they can be used to reach people who do not read the newspaper.[7] This is clear as the whole word can access claims through the internet and it does have negative (global) influence on the image of the person (Hockey in this case) being defamed.

In the hearing, it was highlighted that there was nothing in the placard indicating goods or services (or anything) that is being offered “for sale”, which forced the court to accept that they were defamatory imputations, which were not actually conveyed in the same words during their actual appearance on the newspaper.[8]

The above issues were similar with the ones raised in the case of the impugned tweets. In submissions made by Hockey’s counsel, requests were made for the court to treat it as a discrete publications, and in so, it should be viewed analogous to the placards. Unlike the placards, the tweet does contain actual links to the stories, but the counsel made the assertion that all those who read the tweets might not necessary click on the link to read the full story, which could force defamatory iterations in the process.[9] This is natural of the common world as people tend to pick headlines and base their views on what is contained in the headline. Thus, while the story does not really convey defamation, the inability of people to actually click on the link and read the stories can made them decode wrong messages - and this is defamatory.

White J also referenced Pedavoli v Fairfax Media Publications Pty Ltd,[10] where it was established by McCallum J that in order for a tweet to be considered, the tweet must be linked to a newspaper billboard. The recognition made in this case is that twitter is distinguishable placard advertising as they offer direct and immediate access to the content that is presented within the tweet’s context.[11]

In an case, Pedavoli was distinguished by White J on the accord that the obtained findings in that relation was in respect of an offer for the tweet to be amended and not in a case of defamatory as he found that: the fact that the readers can obtain access to the article in question does not imply that these readers will actually decide to exercise such access as some of the readers might just read the tweet without proceeding further to the article.[12] Thus further justifies earlier understanding that some people can define conclusion from a tweet without actually reading the associated article.

In the argument made by Fairfax counsel, if the readers have interest on what they are reading, they would likely access the article linked to the tweet, read through and understand the broader context that such headlines were based on. This was considered as having effect on damage and not on liability. As such, they tweets were considered as conveying the same defamatory iterations as the placards.[13]

Determining defamatory meaning trough tweets: an open question

From the above understanding, an open question can be raised as to how twitter can be used to determining defamatory meaning. Since it came its creation in 2006, the twitter platform has changed in a number of ways. Presently, each single twee contain about 140 words with videos and photos serving as accomplice. The “Twitter Cards” provides these richer contexts. In the twitter cards, users are offered necessary opportunity to attach webpage summaries, photos, videos and other media in order to drive traffic to their external websites. The functionality of these features does depend on the website developer’s decision and ability to link such twitter feeds to their website. In cases where the tweets originating from the user’s twitter are linked to their website’s URL, they will be able to have their twitter contents appearing in the tweet.[14]

When media organizations adopt twitter cards, they will be able to create a summary of an article that readers can easily access via the standard twitter interface. In order to expand the tweet, access the summary of the article and associated media, the reader will need to click on “View Summary”. If the reader has interest on the article, the person can click on “View on web” in order to access the full article.[15] These features are illustrated in the below figures.

While the word “twitter card” was never referenced in the case, it is evidently conclusive that the court did consider this feature in the course of determining whether or not Fairfax’s tweet are defamatory[16]

Three “twitter issues” where considered by the court with the first being that the tweet must contain the impugned word as illustrated above. Secondly, it was considered that the tweet must have an article summary and this was the case as illustrated above. Considering that the two options have been fulfilled, it then led to the question of how twitter cards can be used to affect determination of defamatory meaning. In the context of this case, the question was widely left open.[17] The major reason why the case was strongly open is because it has not been applied in the context of the Australian law with reference to defamation as contained in this particular cases. Thus, while numerous references could be made from other related case, direct referencing was virtually impossible.

The court finally decided to consider the twitter issues separately with the phrase “Treasurer for sale” found to be defamatory both in its independent state (in the case that the reader did not expand the tweet to read the news summary) and in the associated case (where the reader actually read the summary of the tweet). However, the tweet was not considered defamatory in the case that the reader actually followed the link and reach the full article.[18]

Although the question remains open, one thing is certain in the Australian (and potentially global) context, which is that a single tweet can result to numerous levels of analysis in a defamation case. While this was not clearly demonstrated in this case, the potential for tweets to be considered defamatory in isolation does stand, but this will not be considered defamatory in the context of twitter card article summary – in which the readers actually read through the article to establish broader understanding of the headline.

Answering White J’s open question

In order to address the Justice’s open question, it does seem natural that the twitter user should be viewed as the published of such twitter card summary that is shown from where the user links to the actual website.

Although it is common for the appearance of the article’s summary to be a presupposed action form the side of the developer, one will also expect that in a world where sharing is a significant part of the internet, twitter users are expected to naturally assume that any URL shared would be able to generate some kind of summary on the social media’s interface. This is suggestion is based on the understanding that it would be virtually impossible for a website develop to keep track of all of its URLs in terms of where they are shared and how they are shared. This issues does need to be captured in the principle view that every republication (of a published work) should be considered a new case of defamation.[19]

Another complex point is the case of the owner of the linked website. In this case, Fairfax is the owners of the website that the tweets are linking to. In many cases, it would be normal for people who don’t owe a website to actually establish a linking content to such website. No matter the case, the user could be considered responsible for the republication of a defamatory issue. A clear point that should be differentiate is that the user could find it difficult to present concrete defense of innocent dissemination in a case where the user is also considered responsible for the associated website.[20]

Conclusion

In conclusion, the above case of Hockey v Fairfax Media Publications Pty Ltd has presented a new dimension when it comes to treating the issue of online defamation in e-commerce. This is because simple 140 words can be used to establish the justification for a $200,000 ruling as demonstrated in this case. Thus, it further validates the importance of both corporations and individuals considering whatever they post on line before actually making such publication as innocent republication of an article can actually result to a new defamatory claim. Finally, the published should always ensure that at least, a summary of the article being referenced in the publication is vividly presented to users in order to void claims that could arise from innocent republication.

---

[1] Hockey v Fairfax Media Publications Pty Ltd (Hockey) [2015] FCA 652; BC201505854.

[2] Above, n 1, at [339] (White J).

[3] Markson S and Berkovic N “Joe Hockey sues Fairfax over ‘TreasurerforSale’story”,(2014)TheAustralian,www.theaustralian.com.au.

[4] Above, n 1, at [475]

[5] Above, n 1, at [10]–[11]

[6] World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712.

[7] Above, n 6, at 725, quoted in Hockey, above, n 1, at [162].

[8] Above, n 1, at [167]–[168].

[9]Above, n 1, at [205].

[10] Pedavoli v Fairfax Media Publications Pty Ltd [2014] NSWSC 1674; BC201410648.

[11] Above, n 10, at [60], quoted in Hockey, above, n 1, at [206].

[12] Above, n 1, at [207]

[13] Above, n 1, at [208]–[212]

[14] See Twitter, Twitter Cards, July 2015, www.dev.twitter.com

[15] Twitter, L M Bourke, Poster and tweets defamatory but not substance of article, Judge rules in Joe Hockey defamation case against Fairfax: http://latika.me/1KqimDo, June 2015, www.twitter.com.

[16] Above, n 1, at [195]–[213]; see [201]–[202] in particular.

[17] Above, n 1, at [202].

[18] Above, n 1, at [209], cf [211], [213]

[19] See Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231,; BC200906751, at [127] (McColl JA)

[20] See Trkulja v Google Inc LLC (No 5)[2012]VSC 533; BC201208568, at [19] (Beach J).