In the recent case of Chris Cairns v Lalit Modi, the
High Court in England refused to dismiss a case of "defamation
via Twitter", in circumstances where the "subscribed
readership" was alleged by the defendant to be so small that
the plaintiff was unlikely to sustain any harm.
The plaintiff, well known New Zealand cricketer Chris Cairns,
maintained that he was defamed by 'tweets' authored by the
defendant alleging Cairns was guilty of match fixing. The
defendant, Mr Modi, held senior roles within international cricket
and was considered one of the most influential men in cricket.
Modi sought to have Cairns' claim set aside for abuse of
process due to its 'trivial' nature, arguing that there was
"insufficient publication". Modi requested the Court hold
a hearing to determine the extent to which the tweet was read in
England before allowing the matter to be tried there.
An issue arose as to how to calculate the readership of a tweet.
Two expert witnesses gave evidence that the number of recipients
varied from 35 to 800. Justice Tugendhat held that the actual
number of direct followers is only one consideration, as
"republication" is likely to be substantial and other
cases had succeeded where material was published to a single
person. Justice Tugendhat determined that Cairns was able to
continue the action.
Cairns' case highlights the perils of publishing via social
media, including on "Twitter". For example, last month
The Australian newspaper's editor-in-chief, Chris Mitchell,
said he would sue journalism academic Julie Posetti for defamation
in respect of a tweet she sent which purported to quote a
journalist as telling her that Mitchell was "in the lead up to
the election ... increasingly telling me what to write". Both
Mitchell and the journalist deny the allegation.
While it is not easy to determine the extent of publication, the
measure of damage to a defamed person is about more than just the
number of people who subscribed to the publication. Republication
can mean that a Twitter account with few subscribers could be read
and passed on to hundreds of people. Think twice before
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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The issue of recording telephone calls was recently considered in the Federal Court in Furnari v Ziegert  FCA 1080.
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