ACU (Australian Catholic University)


Issue 6, Spring 2012

All in a Twitter


In just 140 characters, an ill-thought-out tweet can quickly land you in hot water. Professor Brian Fitzgerald, Foundation Executive Dean of Law, shares some Twitter tips and explains why we should think before we tweet. 

Twitter is a web-based social networking platform that allows users to post short messages or ‘tweets’ of up to 140 characters in length. In the main, these messages are made available instantaneously to ‘followers’ and are accessible to anyone who takes the time to search for them. There are more than 140 million users of Twitter world-wide and on average more than 400 million tweets are generated each day. Some of our best-known tweeters (’the Twitterati’) include Lady Gaga who has 26 million followers, President Obama with 16 million followers and even Shane Warne, who has 800,000 followers.

What role for law?

While Twitter might be thought of as a virtual haven where anything goes, comments made through Twitter can have a significant impact on our everyday lives and, in turn, may have legal consequences.

This is not to say that all the traffic generated around Twitter is bad. One only needs to point to the strategic use of Twitter in emergencies like floods and cyclones to appreciate the good work that can be done. Nevertheless much of the publicity that surrounds Twitter concerns tweets that bring into question the reputation of others.

In the dark of night, and in the flush of emotion, many people seem to find the courage to tweet their innermost thoughts about others. While a casual chat with a friend on the phone may provide the same sort of avenue for letting out your emotions the major difference with the phone call is that the message is being delivered to one person, and in this scenario, a close and trusted friend.

The architecture of Twitter is much different. While the message might be meant for close friends, it is in fact delivered to anyone who wants to listen. Further, the message is not just an ephemeral conversation that disappears once spoken, but rather a text-based record that has the potential to last forever.

Interestingly, although there have been innumerable skirmishes on Twitter that allege defamation, very few have gone to court. There are some obvious reasons for this. For instance, taking a defamation action to court is very expensive and at the end of the day you still have to prove your case. In practice, a much more informal and to some extent common sense approach has emerged whereby someone offended by a tweet will notify Twitter, or the author of the tweet, or both, and ask that the tweet be removed and an apology posted. This process will not remedy all of the damage in all of the cases but in many it will be the most pragmatic solution. The process is an interesting example of how communities find solutions in the complex and widely distributed networks of the internet. But the law is never far away and, if the person who is offended feels that the damage done is serious enough, they may be motivated to put the matter before the courts.

One of the first Twitter-related defamation cases to reach the courts concluded earlier this year in London. In that case, New Zealand cricketer Chris Cairns successfully sued Lalit Modi, founder of the Indian Premier League (IPL) cricket competition, for suggesting in a tweet that he was involved in match fixing.

Cairns was awarded £90,000 in damages and £1.5 million to cover his courts costs. Interestingly Modi’s lawyers first argued that as the tweet originated in India the English Court had no authority to hear the matter. While the law on this issue is not fully settled, the Court said that as long as the tweet was accessed in England, publication had occurred and the comment was actionable in England.

Twitter tips
1.    Do not post tweets in the heat of the moment when you may be upset or angry and more liable to say something you will regret at a later time
2.    Do not post tweets that are motivated by bad intentions or malice
3.    Even if you are acting in a more light hearted manner, do not post tweets that trash or ridicule other people

What to do?

There is little doubt that communications or tweets emanating from Twitter are subject to the law and can be the subject of lawsuits. However, considering the enormous volume of activity on Twitter on a daily basis and the informal nature in which it is communicated, many disputes will never enter a courtroom. If you do step over the line and all you are asked to do is remove the tweet and apologise you may be lucky.

Our ability to communicate with others via Twitter or other means can be a force for good. It can connect us with family and friends as well as bring us vital information about our community. But it is also very powerful and its misuse can have devastating effects on other people. The fact that we did not intend to hurt anyone will not be an adequate defence.

The fact that we did not get into trouble last time is also no insurance for the future.

Twitter, like any other ‘vehicle’ should be operated with care, responsibility and respect. If we cannot do that we face the prospect of increased litigation or lobbying to have more control or filtering inserted in the system. As in many areas the greatest threat to the open and dynamic nature of this amazing communication network lies in people being hurt by those too naive or insensitive to care for others.

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