Antitrust laws and social media in the US provide a case study for defamation law

Australians Amanda Vanstone and Andrew Bolt won a defamation action against the New South Wales parliament last week over the post that declared “racist” comments they made on Twitter had been defamatory. The judgment has clear implications for legal cases involving social media.

Bolt, who was also found liable for defamation, had claimed $500,000 in damages, while Vanstone sought $1.5m – a not unreasonable demand given the sensitivity of the case. Bolt has vowed to appeal and, along with the state parliament, has indicated that it will do the same.

This is a positive decision on social media and it brings some crucial differences to damages awarded in English libel cases.

Before 2017, a person who suffered damage to reputation (along with costs) in a defamation action had to prove that damages were sought in order to make up for other damages done by the defamatory statement. If the statement was true, the defendant must prove that the comments harmed the reputation of the victim by showing that such damage was sufficient to offset the harm caused by the false and damaging statements.

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In a libel action in England and Wales where someone has been made famous for statements made publicly, such damage is generally not going to amount to any damages. Instead, it is the defendant who usually have to prove damages, the amount of which is usually wider than the wider damages. However, there is an exception to this principle when there is a public defamation action in England and Wales and that is where there is a “fair comment” law.

In this case the defendant had successfully defended previous libel action in the two countries. However, the English court of appeal held that the order had been made too quickly. It was generally believed that a defendant should be given more time to react and to respond and to that end it ordered that the judgment of the high court case in Australia should be entered as the final judgment. The defamatory material had already been published and would therefore have to stand.

Many commentators have now admitted that Bolt’s targets were largely ridiculous and misguided, yet failed to attack Bolt’s argument. The AFP (Australian Federal Police) along with a department responsible for workplace safety and the chair of the New South Wales education department had actually entered into agreements with the new organisation to host sites of Bolt’s blogs.

Bolt claimed that they had bargained, and had been paid to participate. His opponents portrayed him as a man of no shame. There were many instances of individuals saying that Bolt’s words could be ignored. They said that insults should be accepted with a shrug.

Social media has historically been a perilous place. In recent times, social media has been very large and very powerful. Many people think that the social media is something “out there” that can be tapped, thus allowing them to obtain power that could be disproportionate and thereby dangerous.

When contemplating the consequences of social media for social media cases, it seems clear that the most important aspect of the recent case are not the financial implications for the defendants, but rather the legal precedent that may be set for all future social media cases.

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The court found that the money claimed by Bolt was not spent in good faith in order to seek damages. In the other case, the difference in damages between a sufficient finding of damages and a lack of such a finding was the focus of that case, but was not the focus of the Bolt case.

How we approach future anti-social media cases is a critically important question. Judges will have to grapple with the role of social media in policing rights such as free speech. Will governments impose reasonable controls on social media, or will courts decide that laws are too difficult to craft.

Disclosure: the author (Joanna Blythman) was counsel to Bolt and the Australian government.

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