Most online defamation actions I encounter primarily seek one form of relief – the removal of the offending material from the Internet. Damages and costs are often a secondary concern to clients, albeit important ones, especially in offsetting the impact on the individual's reputation and the inconvenience of litigation.
A Malaysian case this week highlights another creative remedy that might be of interest to litigants structuring an out-of-court settlement. The Daily Mail describes the case,
Fahmi Fadzil, an opposition politician's aide and respected commentator, claimed on the social networking site [Twitter] that his pregnant friend had been poorly treated by her employers at a magazine run by Blu Inc Media.
Hours later he retracted the statement on the site, but the company's lawyers sent him a letter demanding financial damages for defamation and an apology in major newspapers.
The case has now been settled after Fahmi agreed to use Twitter to apologise 100 times over the course of three days.
Each post reads: 'I've DEFAMED Blu Inc Media and Female Magazine. My tweets on their (human resource) policies are untrue. I retract those words and hereby apologise.'
Fadzil completed the 100th tweet some time yesterday, and it was retweeted by hundreds of new followers. Twitter users tracked the story with the hash-tag "#defahmi," and someone created a "defahminator app."
Some claim that he's gained in the ballpark of an additional 1,000 followers from the incident. Or as Fadzil said this morning,
i'mma rawkstar international worldwiiidddeee hahaha (sic)
Not everyone is so enthusiastic though. Nikki Cheong thinks the settlement terms are overkill,
Look, we get the point. He defamed you and now he needs to apologise. We don’t need to read it 100 times. The tweets go back to the same 4,300+ Twitter followers that he has no matter how many times he sends that message.
Christopher Tock commented in a tweet picked up by several media outlets,
“First time witnessing a 'community service sentence' on Twitter
In a blog post Tock elaborated further,
Herein lies the question – Did Blu Inc, in their move to settle for a public apology in this manner, expected this to happen? Did they forget that in social media, the old rules and ancient laws does not apply? (This method is akin to punishing a child in their school days, writing a sentence a hundred times to learn their mistake. Remember Harry Potter and Dolores Umbridge?) Or could it be that they needed the coverage. In other words, was this a planned strategy to begin with?
Cheong questions how effective a Twitter apology is,
…Which brings me to reach. As compared to a newspaper, Fahmi’s Twitter numbers, while on the high side in the context of the average Malaysian Twitter, is very small.
But Tock notes the extensive media coverage the apology has garnished, and states that it had a much bigger impact than a full-page newspaper advertisement.
For Defendants a social media apology of this scope might be time-consuming, but it's certainly less costly than purchasing a retraction in a newspaper. For Plaintiffs, they might better target the audience where the alleged defamation occurred.
Either way, we're likely to see more of these "community service sentences" on Twitter and other social media platforms in the years to come.
I'm a little surprised that with new social media we seem to have lost a norm that in "old" social media used to defuse conflicts before they ever became a matter for the courts.
With netnews and mailing-lists, if someone felt they had been defamed, they had a "right of reply". As we were all peers, and all had the same access to the media as each other, the normal case was to tell the person publicly that he had defamed you, and what the real facts of the matter were. This yielded either an apology, a debate or an exchange of insults.
The expectation, widely repeated, was that in a medium where we all had a right to reply, an attempt to take the matter to court would result in the court asking "and why didn't you reply?".
Looking at this from the point of view of a philosopher, I found it pleasant that one could settle a matter with public debate. I tended to be amused at the debates, and ignored the discussion threads that trailed off to occasional insults.
I rather miss those days, and wonder if the courts really should have asked our pair of twits "why didn't you reply?"
–dave