Libel on Twitter: an examination of the continued application of the law of defamation to govern defamatory content in the Web 2.0 age

Abstract

For the Web generation, the likes of Twitter are part and parcel of life. When people look for breaking news, they do not turn to television channels, but to Twitter. When they look for updates on sporting events, they turn first to Twitter. When they look to engage with others, they turn first to Twitter.

Twitter has democratised expression. It has empowered individuals to express themselves in ways never previously available to them. Where the right to public, written expression was traditionally in the hands of a select few, it is now a right given to all individuals. It has revolutionised expression.

The law of defamation was developed to address the nonconformity of the tabloid industry. Newspapers published conjecture and gossip because they appreciated that such content appealed to a significant proportion of the readership and in turn that doing so was lucrative. As a result, the modern day law of defamation was developed; a mechanism designed specifically to curb the behaviour of tabloid newspapers.

While there have been debates as to the extent to which its provisions are ‘fair’, the law has been applied to the instances that it ought to have been. The law has been able to be applied.

However, expression as we know it has evolved. No longer are there few newspapers publishing defamatory content. There are now thousands of individuals on Twitter, tweeting and retweeting defamatory content. The cases of Giggs and McAlpine are merely two instances of the subjects of remarks being left with little redress; having their reputations destroyed.

The key question in this thesis is; can the law of defamation remain the mechanism by which reputations are protected from harm on Twitter? Can it remain an effective mechanism in this new context of expression?

The very nature of law as a mechanism to deter a course of behaviour requires that there is fear; individuals fear that should they not act in accordance with the prescribed norm of behaviour, they will suffer some loss. If the punishment cannot be effectively enforced, the fear of punishment does not exist and in turn it is not effective as a deterrent.

The analysis in this thesis reveals that this does not occur as the provisions of law when applied to actual tweets and retweets do not allow for the effective application of the deterrents. When the cases of Giggs and McAlpine are considered against the provisions of primary and secondary liability, it is evident that the law cannot provide the clarity and certainty because of the sheer volume of actors and lack of context in decision making.

With the current mechanism no longer appropriate, a model that has at its core the community of individuals on Twitter developing and enforcing their own standards, is proposed in this thesis. The community is supplemented by the law and Twitter, both of which have a role. As a mechanism the comparative analysis of the emergence and growth of the ‘RT’ retweet variant and examination of the Wikipedian model of governance, makes it clear that the model could be viable, with the Giggs case used as a case study.

Expression has been democratised under Twitter as we harness the power of the collective, rather than affording the opportunity to express themselves to a few select individuals. And yet, we have retained the same mechanism as we have employed in the previous environment in which there were a few publishers. The mechanism proposed in this thesis is one which, at its core, seeks to harness the power of the collective to govern. It is more appropriate in this new climate of expression to ensure reputations are not unduly damaged.

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