Sunday, August 21, 2011

Twitter and defamation: a... likely pair

"Twitter is becoming an essential tool for journalists, but it comes with some pretty tricky ethical and professional problems too.” (Posetti 2009)

Twitter is a rapidly growing social-networking and media-sharing website that attracts over 50 million tweets a day (Beaumont 2010). It would be fair to say that the Twitter phenomenon is changing the way people, in particularly journalists, communicate (Atkinson 2009: 30). Benefits of using Twitter as a journalistic tool include; access to a wide range of sources and news streams across the globe, up-to-the-minute live reporting on events and crisis’, and the ability to expand upon ones journalistic reputation through the accumulation of ‘followers’. However, as Posetti alludes to above, these advantages, if not supported by traditional journalistic codes and practices such as fact-checking and sub-editing, can quickly lead to serious pitfalls that eventuate in run-ins with the law. One of the most common legal and ethical dilemmas that have arisen from journalists’ use of Twitter is the breach of defamation laws in Australia. In this piece, the underlying tension between Twitter and media law and ethics will be examined in light of the 2010 #twitdef saga.

On 25 November 2010, former rural reporter for The Australian, Asa Wahlquist, spoke at a JEAA journalism conference at UTS about her experience covering climate change, of which she directly responded to criticism that there had been uneven exposure to competing views during the 2010 federal election campaign (Whittaker 2010). Journalism lecturer at the University of Canberra, Julie Posetti, live-tweeted during Wahlquist’s presentation, among which were:

Walhquist: “In the lead up to the election the Ed in Chief was increasingly telling me
what to write.” It was prescriptive.

“It was absolutely excruciating. It was torture”: Asa Walhquist on fleeing The Australian
after being stymied in covering #climate.

#jeaa2010 Wahlquist:"Chris Mitchell (Oz Ed) goes down the Eco-Fascist line" on


The next day, The Australian’s editor-in-chief, Chris Mitchell, announced he would sue Posetti for defamation on the grounds that Wahlquist “may or may not have said what [Posetti] alleges” but more importantly, that the claims were false and as such, “there is not protection from the law in repeating accurately allegations falsely made” (Dodd 2010a).

A transcript of audio tapes taken at the conference leaked days later by the ABC confirmed that, while Posetti did not quote Wahlquist word-for-word, her tweets were a fair report (ABC 2010; Media Diary 2010). Nonetheless, Mitchell’s lawyer, Blake Dawson, sent a public letter to Posetti on the 29th holding that the tweets were defamatory of Mitchell because they imputed Mitchell “bullied”, “intimidated” and “personally caused Ms Wahlquist to change her articles to represent [Mitchell’s] views” (Blake Dawson 2010). Underlying such claims was the belief that the allegations were false and, because Posetti did not seek to verify the material, she is liable for the publication and the resulting damage to Mitchell’s reputation as an editor.

What eventuated from these events was a public outcry from fellow journalists at the irony of a newspaper suing for defamation; particularly when Mitchell had been vocal years earlier about “Australia’s ludicrous defamation laws, which act to suppress free speech and enrich lawyers” (Editorial, The Australian, 2004 in Holmes 2010a). On the one hand, Posetti and a host of other journalists -- who discussed the issue on online opinion sites and Twitter via the hashtags #twitdef and #posettigate -- argued that the tweeted quotes were a matter of public interest concerning journalism and politics (Dodd 2010b; Holmes 2010a; Pearson 2010).

However, whether one believes Mitchell’s stance that The Australian gives fair and balanced commentary on climate change (a summary of refutations can be found in Holmes 2010a)
, defamation law in Australia clearly outlines that if you correctly quote and publish a defamatory statement, you are also liable for defamation (Pearson and Polden 2011: 204). Twitter is a public medium, and by choosing to publish Wahlquist’s comments without cross-checking her facts and pursuing balanced reporting by way of getting Mitchell’s other side of the argument, Posetti exposed herself to libel.

Arguments in the Posetti v Mitchell case is representative of a much larger ethical debate in the often clashing journalism and legal worlds. That is, the grey line between ‘fairly reporting’ a matter of public interest that took place in a public forum and a ‘defamatory matter’ where ones’ reputation is likely to be harmed by publication of information about them (EFA 2006). This balance between protection of individual reputation and freedom of expression that defamation laws seeks to uphold is ethically problematic. On the one hand, the threat of defamation, or ‘libel chill’, can have a stifling effect for the media and on the other it promotes meticulous and quality journalism. The specifics of the Posetti and Mitchell case could be explored in further detail, however, should Mitchell have taken Posetti to court, both would have had defences that battle over (what can be understood in ethical terms as) social responsibility theory. That is, that the search for truth requires considerable freedom balanced against the private rights of others (Peterson 1963: 97-8).

Social responsibility theory works off the assumption that people generally speak in good faith and are in an earnest quest for truth, and yet the theory also acknowledges that the law should protect those who don’t assume their moral responsibilities along with those who do (Peterson 99). Peterson (99) suggests that when one abandons their moral claim to free expression they also undermine their legal claim, however, what constitutes freedom of expression is highly contested. As it currently stands, Mitchell chose not to pursue Posetti for damages and instead demanded an apology over the comments, of which Posetti, in an equally public letter from her lawyer, refused to do (HWL Ebsworth 2010). Therefore, both parties are clinging equally to their legal and moral rights- only their interpretations are distinctly different.

Another significant concern that should briefly be addressed is the dangers of using Twitter as a journalistic tool. There is a great irony in that only a year after Posetti made the opening quote of this piece she would be a case study for her own precautions. To use Posetti’s argument, Twitter may be a useful addition to a reporter’s “kitbag” but it is also a largely uncharted, potentially dangerous medium
(Posetti 2009). The question stands whether Twitter should be used for live-tweeting when there is no time for a journalist to check their facts, have it edited and 'legaled', tweet with perfect accuracy, and make the context of the tweet clear in 140 characters.

We can learn from the #twitdef affair that journalists who use Twitter should be aware of the legal hazards of live-tweeting controversial speeches. Furthermore, the case begs the question to be asked, and this is something that could be followed up in discussion, whether specific guidelines for social media may be necessary to ensure ethical journalistic practices are upheld. For example, is everything said in this public space on the record or do you need to get permission to quote someone in a tweet? Furthermore, and this question was posed by Posetti (2009) herself, what’s the impact of constant tweeting on a journalist’s capacity to produce considered, original and quality journalism?

Note: After this piece was published Posetti informed me Mitchell is still threatening her with defamation.


ABC (2010). “Audio backs tweets in editor's defamation row,” ABC News, 29 November 2010. <> [Accessed 7 April 2011].

Atkinson, Cliff (2009). The Backchannel: How Audiences are Using Twitter and Social Media and Changing Presentations Forever. Berkeley: New Riders.

Beaumont, Claudine (2010). “Twitter users send 50 million tweets per day,” The Telegraph, 23 February 2010. <>[Accessed 7 April 2011].

Blake Dawson (2010). Letter to Julie Posetti re. “Defamatory material contained in Twitter posts 25 November 2010”, 29 November 2010. <> [Accessed 2 April 2011].

Dodd, Andrew (2010a). “The ‘torture’ of writing about climate change at The Oz,Crikey, 26 November 2010. <> [Accessed: 2 April 2011].

Dodd, Andrew (2010b). “Posetti receives letter of demand from Chris Mitchell, and a special invitation,” Crikey, 2 December 2010. <> [Accessed: 2 April 2011].

EFA (2006). “Defamation Laws & the Internet,” Electronic Frontiers Australia, 12 January 2006. <> [Accessed: 2 April 2011].

Elliot, Geoff (2010). “The Australian's Chris Mitchell to sue Julie Posetti for defamation,” The Australian, 26 November 2010. <> [Accessed: 2 April 2011].

Holmes, Jonathan (2010a). “140 characters of legal nightmare,” ABC The Drum, 30 November 2010. <> [Accessed: 2 April 2011].

Holmes, Jonathan (2010b). “Editor's letter makes for a bizarre Posettigate twist,” ABC The Drum, 3 December 2010. <> [Accessed: 2 April 2011].

HWL Ebsworth (2010). To Robert Todd of Blake Dawson re. Julie Posetti and Chris Mitchell, 9 December 2010. <> [Accessed: 2 April 2011].

Media Diary (2010). “The Posetti Tapes,” The Australian, 30 November 2010. <> [Accessed: 2 April 2011].

Pearson, Mark (2010). “Most journalists…” Crikey, 3 December 2010. <> [Accessed: 2 April 2011].

Pearson, Mark and Polden, Mark (2011). The Journalist’s Guide to Media Law, 4th ed. Crows Nest: Allen and Unwin.

Peterson, Theodore (1963). “The social responsibility theory of the press,” in Siebert, Fred, Peterson, Theodore and Schramm, Wilbur, Four Theories of the Press. Urbana: University of Illinois Press. PP. 73-103.

Posetti, Julie (2009). “Twitter’s Difficult Gift to Journalism,” New, 16 June 2009. <> [Accessed: 2 April 2011].

Posetti, Julie (2010). Status update on 25 November 2010. <> [Accessed: 2 April 2011].

Whittaker, Jason (2010). “Gillard thanked us for being fair and balanced: The Oz editor,” Crikey, 10 September 2010. <> [Accessed: 2 April 2011].

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