The post below is not intended to constitute legal advice. If you are intending to take legal action or respond to legal action then you should seek advice from a suitably qualified lawyer.
These days, Twitter and blogging seem to have become increasingly litigious. I have had a couple of people mention legal action in response to my posts. For instance, in a blog about me, David Price OBE wrote that he was ‘investigating the potential for defamation‘ before, ironically, launching a crude personal attack. And Paul Garvey mentions defamation in the comments on a post of mine where I refer to Ofsted reports that he co-authored. Other bloggers and tweeters have been subjected to similar responses. Those mentioning legal action invariably come from the educational establishment and appear to hold broadly progressive views about education.
It is interesting to speculate on the rise of this new phenomenon; one that often comes hand-in-hand with complaints to bloggers’ employers or university departments. It may not be fashionable in today’s climate, but I am broadly in favour of free speech. There are limits, but we should always err on the side of allowing people to voice their opinions. After all, we have fought long and hard for the right to express a dissenting view. I don’t care for some of the posts that people write about me and I sometimes believe that I have been misrepresented. However, I accept this is part of having a profile on social media.
So what do Australian bloggers need to be aware of when composing their posts? I have found an excellent resource that has helped me to understand the law as it stands in Australia. It is produced by the Fitzroy Legal Service, a community legal group based in Victoria. Defamation law is uniform across Australia and so it should also provide a good guide in other states.
Firstly, Twitter and blogging certainly appear to be covered by defamation law. Defamation is anything that lowers a person’s reputation in the eyes of reasonable members of the community, or causes the person to be ridiculed, avoided or despised by members of the general public. Note that it does not matter what an author intended when writing a post, it matters what a reasonable person would interpret that post to mean. So ambiguity is not much of a defence. Neither is talking in a kind of coded way that at least some of the people reading the post will understand.
This seems pretty broad. Potentially, any criticism could be argued to lower a person’s reputation. In education, we might find ourselves criticising an idea that a consultant is earning a living from. So there is a danger here.
However, there are a number of defences for defamation. For instance, truth is a complete defence to defamation actions. Unfortunately, the law reverses the usual burden of proof in defamation cases – the defendant has to prove the claim true rather than the plaintiff being required to prove it false. So it is always worth having documentary evidence for the points that you claim. Note that people often delete posts and tweets that become contentious so you should take a screenshot or make a copy if you intend to make claims on the basis of them.
The defence of privilege does not seem to be open to bloggers. However, the defence of ‘fair comment’ is probably more applicable. This covers opinions that are honestly held – although not necessarily ‘fair’ – and that pertain to matters of public interest. To defeat this defence, a Plaintiff could prove that the defendant’s motives in expressing the opinion were malicious and that the opinion was not honestly held.
I am not a lawyer but I personally doubt whether there are many education bloggers out there making genuinely defamatory statements that are not covered by the defences above. I suspect that a lot of what we are seeing is a reaction from people who are simply unused to criticism. However, it is possible that an aggrieved party might instruct a lawyer to draft a letter in response to a post or tweet, even if the case for defamation is not completely sound. Such letters are likely to be scary to receive and responding to them through your own lawyer can be an expensive business.
My approach is to express opinions honestly on matters of fact and to avoid personal attacks. Whether it protects me or not, it is a morally defensible position to hold.