Better get a lawyer son… On suing Twitter #auspol #auslaw
Some stories are Tolkienesque in their backstories.
A very long time ago (November 2011), there was an internet campaign called ‘#mencallmethings‘. It was started by Sady Doyle to demonstrate the noxious things said to ‘outspoken’ female writers on the internet by men.
As part of that, Melbourne writer Marieke Hardy decided to name-and-shame the author of a hate-blog dedicated to stalking her. In a post titled ‘Men Call Me Things and I Know Their Names’, Hardy posted the guy’s name, a picture of him, and details about his family and where he lives.
I’m not a huge fan of Marieke Hardy, but I understand why people do. When it was revealed that she named-and-shamed the wrong freaking guy, I admit to thinking: ‘That’s Marieke Hardy for you.’
The guy she defamed, Joshua Meggitt, took legal action and settled out of court.
Now he’s suing Twitter.
There have been a lot of confusing articles about the merits of the case. Peter Black wrote an article on The Conversation:
1) It represents an application of the High Court’s reasoning in the case of Australian businessman Joseph Gutnick vs. the Dow Jones publishing firm. [...]
2) The case highlights the issue of whether disclaimers in the terms and conditions of various websites, such as the one on Twitter, provide legal immunity. [...] Meggitt also has a strong argument in saying the terms and conditions will not protect Twitter against claims made by non-Twitter users.
3) It is one of the first cases in which the platform – in this case Twitter – rather than the person that actually made the defamatory comment has been sued. [Source: 'Will Marieke Hardy's Twitter case change Australian law for ever?' on The Conversation]
Wait… Wha…? Amazingly, Black’s article is one of the better ones. Most of the articles just quote the spiel by Meggitt’s lawyer. ’Something, something, Dow Jones v Gutnick. Therefore, we’re suing Twitter.’
Black’s attempt at analysis follows the usual legal academic position — regardless of the issue, Australian law needs urgent reform:
That means that, under Australian law, it is possible that platforms such as Twitter and Facebook could be held liable for posts made by their users.
If that is indeed the result in this case, Australian defamation law will need urgent reform. [Source: ibidem]
Let’s wind this back a moment. Marieke Hardy wrote on her blog (not Twitter) that Meggitt was the author of the hate site. Hardy then linked to it on Twitter. Dozens of Twitter users retweeted Hardy’s link and added defamatory content. Meggitt’s claim is that Twitter, as publisher of those retweets and added comments, is responsible for the content.
But, Twitter’s terms of service state:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, TWITTER AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES [...] RESULTING FROM [...] ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES [...] [Source: Twitter]
The question is to what extent this indemnifies Twitter from claims arising from the use of its services. The answer appears to be: ‘A lot.’ The case is weird.
Indeed, it seems that’s the point. When Hardy incorrectly identified Meggitt, she used her celebrity status to wreck a guy’s reputation. $15k will only go so far to draw attention to the fact that she named-and-shamed the wrong guy. A few grand on a lawyer to sue Twitter and release a media statement about it, on the other hand, draws a lot more attention. Instead of being the guy named-and-shamed, he’s the guy who was defamed and sued Twitter. People don’t often consider the non-legal reasons for using legal institutions. My money’s on this being about the publicity.