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Lawsuit against schoolboy Andrew Farley for defamation on Twitter must act as deterrent

Orange High School student Andrew Farley.
Orange High School student Andrew Farley. 

Be careful using Twitter, you might be sued for defamation. There, I have said it in less than the 140 characters, but there is much more to the story than that.

Much was made this week of an award of $105,000 against 20-year-old former Orange High School schoolboy Andrew Farley, who used Twitter to defame a music teacher who was appointed to a position vacated by his father on medical grounds. Farley wrongly asserted the teacher was somehow responsible for his father leaving the job.

The District Court judge thought the tweet so ugly that he did not repeat it in his judgment.

The case does not break any new law, but might change habits. There may be a popular view that speaking on social media is just a harmless conversation with your mates, but it is wrong. The social media is publication as far as the law is concerned and you will be liable for defamatory imputations you cannot prove as true or otherwise defend.

Defamation is not a pitfall just for the big media with their presumably careful, law-savvy journalists and editors backed by deep pockets and skilful lawyers. There have been quite a few other well-publicised cases of social media users being sued. Does this mean that people whose reputation is trashed on Twitter now have an effective remedy and the law is catching up with technology? Not a bit of it.

The courageous music teacher fought for her reputation to the end, but it took a couple of years, and despite the award, few 20-year-olds have a lazy $105,000 in their back pocket to pay out a judgment. If pursued, he will go bankrupt, and she will get nothing. Even if he pays, the teacher's actual legal costs will be much higher than the awarded costs and there will not be much change from her $105,000.

So you only have to be careful on Twitter if you are a property owner and you defame someone who is tenacious enough with a pocket deep enough to sustain a long legal battle. Fair-minded people should take everything they see on social media with a grain of salt.

Mainstream media, on the other hand, urges you to believe what is published because it has been properly vetted. So the damages should be higher. But even the more limited publications on social media can be extremely damaging. This is because material on social media usually circulates to the very people in whose eyes defendants hold their reputation high.

Farley's tweet probably went around the Orange school community like wildfire, whereas people further away ignored it. So in her community, the teacher was severely damaged. She felt she could no longer teach.

Human nature is such that many people prefer the expression ''where there's smoke, there's fire'', to a more reasoned approach that rantings on social media should be ignored and anything that can be said in 140 characters is either not worth saying or so truncated as to be a distortion.

The importance of cases like this is not that they offer effective, universal remedies but in their deterrence value.

Defamation law has improved since 2006, but is probably still weighted against publishers dealing with major public-interest matters. It should not be so weighted in favour of free speech so that any twit on Twitter or fool on Facebook can publish what they like about anyone to the very circle of friends, colleagues and acquaintances whose esteem they hold dear.

Clearly the major parties in the ACT have not considered electoral history in Australia. Nationally, they agreed in the mid-1980s to increase the size of the Senate and change the voting system to favour them.

Thirty years later we face a shambolic Senate with micro-parties holding power in inverse proportion to their support. And so the Liberal Party now agrees with Labor that we can increase the size of the Legislative Assembly to do away with the pesky seven-member seat of Molonglo, which has always given us nuisance Green and independent MLAs. Instead, we will have five five-member electorates.

In the past couple of elections they have, between them, taken all five seats in the two five-members electorates more often than not.

But that is only two elections. What about the longer view?

The ACT Electoral Commissioner, Phillip Green, recommended that ultimately the ACT should have five seven-member electorates. He prefers seven-member seats to five-member ones because they tend to yield results more proportionate to the vote that each party gets.

Combined with a ban on above-the-line voting and the rotation of the placing of candidates on the ballot paper, it also means micro-parties do not get a look in. Only those with a reasonable amount of support get a seat.

Green is independent and public-spirited. So major parties will ignore his long-term recommendation and go for the short-term five electorates of five. Even if they decide a 35-member Assembly offers more staff positions and bounty for the faithful, they will go for the seven electorates of five members rather than five electorates of seven.

But the major parties would do well to listen to Green's advice. This is because if you divide the ACT up into five or seven electorates (unlike the present three), the percentage game stays the same but the absolute-numbers game changes.

For any five-member electorate you must get 16.6 per cent of the vote after preferences to capture a seat. That is a big task for a minor party or an independent, especially if the five-member seat stretches across the whole of Belconnen and parts of Gungahlin or stretches across all of Tuggeranong and parts of Woden and Weston.

But if you contract the size of the five-member electorate to, say, just Weston or outer Tuggeranong or North Canberra, the position is different. In such smaller electorates the absolute number of votes needed for election goes down, even if the percentage is the same.

In these circumstances - an electorate covering just a seventh of the ACT population - the local worthy has a much better chance. And in a smaller electorate in the inner north, the Greens can meet the 16.6 per cent quota.

In seven five-member electorates, the major parties might only rarely get three seats - much more rarely than say getting four out of seven seats in a seven-member electorate.

With seven five-member electorates, the winning major party might win 14 to 16 seats in a 35-member Assembly - just one or two electorates returning three seats to the major party. With five seven-member elections, the winning major party with the same overall percentage would get three seats in each electorate - 15 - and maybe a fourth in two or three, making 17 or 18 seats in a 35-member Assembly. That would hold out the possibility of a majority that could inevitably elude a major party with seven five-member electorates.

My guess is major parties will stay with the simplistic extrapolation of the votes in the past two or three elections to the new electoral topography, without considering that when the size of the electorates contracts, it will be easier for well-known locals and, in places, the Greens to get over the line.

www.crispinhull.com.au