Hockey v Fairfax: Defamation - The Substance Survives But Not the Spin

Thursday 2 July 2015 @ 12.13 p.m. | IP & Media | Torts, Damages & Civil Liability

In the recent case of Hockey v Fairfax Media Publications Pty Limited [2015] FCA 652, handed down on 30 June 2015, Justice White of the Federal Court has found in part for the Federal Treasurer Joe Hockey, in his defamation case against the Fairfax Media. A case directed to a series of articles, twitter posts and advertising signs and placards which appeared across the three Fairfax Media newspaper mastheads (The Sydney Morning Herald, The Age and The Canberra Times) on 5 May 2014. Receiving particular attention, and raising the most reaction, was a page one article published under the headline "Treasurer for Sale" in two of the Fairfax newspapers. As a result of the decision, the Federal Treasurer received an $80,000 payout for two tweets from The Age's Twitter account in May 2014 and a $120,000 payout for similar words on newspaper advertising signs and a placard - in all a total of $200,000 in damages.

Decision a Victory of Sorts

While in some sources, the decision has been seen as a total vindication, such as was sought by the Federal Treasurer, the decision is reported by others as not being a total victory for the Federal Treasurer, with one commentator, Associate Professor David Rolph, a media law expert at the University of Sydney being reported as saying, that the core decision by Justice White was:

". . . unsurprising and orthodox given the principles of defamation law as they are, . . .What was found to be defamatory was the posters outside newsagents and the tweets that were sent to promote the story. But the article[s] itself, with the headlines and the allegations set out, were held not to be defamatory."

Substance Fine - Spin Not So

In effect, the decision seems to target the selling of the article, not the substantive story, which was not found to have defamed. Thus, in respect of defamation being found proven against Fairfax Media, it was found to lie in the material promoting the article on social media and generally, rather than the article and headline itself.

In this way, the decision of Justice White throws up a novel twist to the law and glaringly highlights some of the legal pitfalls that may lie with social media, such as Twitter and Facebook, which rewards quick response and often snappy concise content stripped of context and explanation.

Arising out of the judgment there is, as was pointed out on the PM program, the implication for editors and journalists in general that what is tweeted and what is put in headlines is, as a result of the decision, ". . . substantially more dangerous than the stor[y] itself".

In the decision, Justice White distinguished Charleston v News Group Newspapers Ltd [1995] 2 AC 65, a UK decision in which two television actors were allegedly defamed by a page one article in the News of the World newspaper screaming "Porn Shocker for Neighbours Stars" which also featured doctored images from a computer game. In that case, it was made clear that headlines and photographs should be read in the context of a newspaper article but in the current case, Justice White said that the words "Treasurer for Sale" assumed a different complexion when they were reproduced in isolation on Twitter and on an advertising signs and placard. Referring to cases which make it clear that newspaper posters are in a "special position", because they are published to people who may never read the "very considerable qualifications" in a newspaper article, at par 160 Justice White states.

". . . It was common ground that the meaning conveyed by the posters is to be assessed on the basis that they were a discrete publication. In World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 at 725, Glass JA said that 'posters stand in a special position, for the obvious reason that they are published to many persons who do not read the newspaper itself'. Glass JA referred in this respect to the finding of the New South Wales Court of Appeal in West v Mirror Newspapers Ltd (unreported, 14 May 1973) that 'a plaintiff may declare upon words published in a poster, and disregard the very considerable qualifications placed upon those words by what appears in the newspaper, . . . "

In the current case, Justice White indicated the poster was read in the context of the "heightened consciousness of issues of corruption in New South Wales at the time" around ICAC investigations into other political figures and would have for those who read no further conveyed a different meaning than for those who read the full article. At paras [168] and [169] he says as follows:

"168 In the circumstance of the heightened consciousness of issues of corruption in New South Wales at the time, to which I referred earlier, some ordinary reasonable readers are likely to have understood that the poster was indicating that the SMH contained an article concerning corrupt conduct by Mr Hockey. The words “for sale” implied that that conduct involved the receipt by him of payment of an improper kind, or a willingness on Mr Hockey’s part to receive such payments. In context, the ordinary reasonable reader would have understood there to be an assertion that Mr Hockey was taking, or willing to take, payments which were influencing his decisions as Treasurer of the Commonwealth. That is to say, ordinary reasonable readers would have understood the poster, considered by itself, to be conveying imputations (c) and (d).

169 Those readers who later read the SMH article would, for the reasons given earlier, have appreciated that that was not what the SMH was in fact conveying. However, those who did not read the SMH article would not have had their initial understanding removed in this way."

Is Our Defamation Law in Need of a US style “public figure” doctrine?

Again, this case raises questions as to whether a public figure like the Federal Treasurer should be able to be criticised more widely by the media and public alike, than an average citizen, and that recourse to laws like defamation should not be as readily available for public figures and politicians in an open and democratic society where government in particular is meant to be accountable. As The Conversation states:

"The Australian people deserve a more robust debate. It is worth considering whether we should follow the US 'public figure' doctrine, which makes it harder for politicians to be successful in a defamation claim."

An interesting add-on to this is that in times when technology and Google are here, the decision and all that surrounds it will linger-longer, for as is pointed out by The Conversation:

"The irony in all of this is the attention it has brought on the issue, and on Hockey. The public might have long forgotten Fairfax Media’s headline, but with this decision, the wound is re-opened. Google 'Treasurer For Sale', and see what happens."

The Take Away

The decision is an interesting decision that makes the general public more  cautious about how they personally will use Twitter in future - maybe just for LOL Cat stories? Can cats sue? 

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products.


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