Thursday, March 31, 2011

Counting Your Chickens..tweet, tweet...

How many followers do you have on Twitter? How many people do you follow and how regularly do you check their tweets? The power users of Twitter may have vast numbers of followers according to Twitaholic, which lists Lady Gaga at number one, with 8,096,522 followers, followed by others such as teen sensation Justin Beiber with 7,130,026 followers, but how many of these followers actually access and read their tweets? In Australia, Kevin Rudd still ranks at the top of the Australian list for number of Twitter followers at 945,418.

Similar questions may also arise with other social networking or blogging sites. According to Laurel Papworth, Australia’s social networking guru, in March 2010 there were about 1,950,000 people following the ACDC Facebook fan page and 1,132,000 following the Facebook fan page for Bananas in Pyjamas, with many following alternative BiP fan pages.

How many of these followers or fans would be counted for the purposes of determining damages in defamation in the event of a defamatory tweet or post?

This question came before the UK High Court in November 2010 in the context of a public dispute over allegations of match fixing in the Indian Premier League (‘IPL’) by New Zealand cricketer (and former captain of the New Zealand team) Chris Cairns, from an account apparently maintained by Lalit Modi, Chairman and Commissioner of the IPL and Vice-President of the Board of Cricketing Control for India. Lodi had been suspended from these positions in April 2010 and ceased in September 2010. In this action, Chris Cairns v Lalit Modi, Cairns complained of the tweet, made on 5 January 2010, which was deleted 16 hours later from the Twitter page (the ‘Tweet’), and publication of the Defendant’s words in the online cricket magazine Cricinfo UK. The action in November only concerned the issue of the extent to which the Tweet was read in England and Wales.

Whilst the question of extent of publication is relevant to damages, the Defendant in this case had sought to have the order that service of the proceedings out of the jurisdiction be set aside on the grounds that the plaintiff had not established (with respect to the Tweet) that a ‘real and substantial tort’ had occurred within the jurisdiction. The Court was presented with two sets of expert evidence. Dr Laurence Godfrey, well-known expert on internet defamation and litigant in the Use-Net related defamation cases in multiple jurisdictions, was instructed by the Plaintiff. Godfrey initially identified how a tweet may be distributed, directly and indirectly, for example, by re-tweeting or posting on other websites. He estimated that the Tweet would have been received by between 200 and 800 followers within the jurisdiction. He indicated an even higher number would have received the Tweet by indirect means, but did not given any estimate of an exact figure.

Mr Henderson, instructed by the defendant, provided a much smaller estimate of about 90 followers within the jurisdiction, a figure he then discounted by half to reflect the probability that half of this number would not have in fact read it or not seen it for other reasons. Therefore he arrived at a total figure of thirty readers in the jurisdiction. Following this statement and other information provided by Henderson, Godfrey revised his own figures down to a number of around 100 readers.

Further Lucy Middleton, a solicitor for the Defendant had attempted to contact the individuals within the jurisdiction who were potential readers of the Tweet to ascertain if they had, in fact, read the Tweet. She provided evidence to the Court that she had not been able to find contact details for the majority of potential readers. Of those she did mange to speak to, only two people confirmed that they had read the Tweet and one of those stated that he had been in Hong Kong at the relevant time.

Mr Justice Tugendhat accepted the arguments made on behalf of the plaintiff that despite the relatively small number of followers and the removal of the Tweet after sixteen hours, due to the sensational and topical nature of the Tweet, it would be reasonable to infer that the publication in the jurisdiction of the Tweet was much wider than the number of direct followers. There remained a real threat of wider publication.

Tugendhat J observed: ‘A claimant’s primary concern in a libel action is vindication, not damages for what has been suffered in the past. So the damage that has occurred before the action is brought may not give an indication of the importance of the claim. Vindication includes a retraction, or a verdict for the claimant, or a judgment to the effect that the allegation complained of is false. If one of these is achieved, then it may be unnecessary to pursue a further remedy by way of injunction. So a claimant can legitimately and reasonably pursue a claim where the publication that has already occurred is limited, when his purpose is to prevent, or at least limit, further publication to a similar effect being made in the future. But that is subject to there being a real prospect of further publication if the action is not pursued. A retraction or judgment in favour of a claimant can be expected to have the effect of preventing or limiting republication, even if a claimant is not asking for an injunction.’

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