tip off

Rundle: Mitchell’s own goal on the eco fascist line

By now there will have been plenty of comments on Jonathan Holmes’s Drum-beat up on Posetti-twittergate (there’s going to be so many twittergates in the future, I suggest we give them double-barrelled surnames, like kids from Eton or Princes Hill High), most of them inflamed by Holmes’s grumpy old journo reaction to the medium (“It’s been one of those issues the Twitterati love — because it’s all about them and their beloved medium” he says, later adding, “You kids! Get off my lawn! My prostate hurts! what the hell is a frappacino?!”).

He’s right to point out that Twitter is a form of publishing, not post-legal freeware pixiedust, but he then goes way over the top in his assessment of the material at hand, arguing that Posetti might have got in trouble when she tweeted that: ‘Wahlquist: “Chris Mitchell (Oz Ed) goes down the Eco-Fascist line” on #climatechange” ‘….

Says Holmes: “Calling anyone any kind of fascist is undeniably a defamatory thing to do … given the lack of context that’s an inescapable part of Twitter, Mitchell’s lawyers could argue view that there’s a clear imputation that he is some kind of fascist.”

Well, maybe. The reasonable person defence would surely say that anyone who thought Mitchell was a so-called “eco-fascist” couldn’t understand the tweet at all. The issue of “compressed communications” is a lot more complex than that, as libel case law has established — a four-word cartoon caption has latitude, for example, because we assume that the very medium creates a context (as per the famous, failed, attempt by Harry Seidler to sue The National Times and cartoonist Patrick Cook in the ’80s).

More importantly, if Mitchell’s going to express outrage at the “f” word, he’s going to have to talk some embarrassing recent examples in his own paper Hammer of the Greens. You have to go all the way back to last month, to find this:

On October 27, 2010 in an article entitled “Bob saves energy keeping us in the dark”, the lead para spills the beans:

Bob Brown creates such a delightful, playful, Dalai Lama-style vibe in the flesh that it’s always a surprise when he flicks the switch to enviro-fascist.”

Even better for the case at hand is this one from 2009: “Rivers hijacked by “green fascists”:

It is hypocritical to put wilderness ahead of Aborigines,” argues Sara Hudson, “The misanthropic attitude of conservationists was revealed last week… ‘

One of numerous examples.

This one, by Centre for Independent Studies flack Sara Hudson, is exactly the use of “green fascist” or “eco fascist” that Mitchell appears to disdain. The first is a flippantish report by Samantha Maiden on a Greens press conference, which suggest that the editor of The Oz doesn’t mind these terms being used without much substance to them.

For Possetti’s sake, I hope Mitchell doesn’t continue this bizarre kettle-pot lawsuit. Should he do so, bring the popcorn. Should he win, call your lawyer. For if the editor of The Australian firms up defamation law as regards the metaphorical use of the “fascist” tag, then he will have handed innumerable people a precedent with which to target every News Ltd columnist and blogger who’s muttered about “greenshirts”, eco-Nazis or the like.

Twould be a hell of an own goal.

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  • 1
    Meski
    Posted Wednesday, 1 December 2010 at 3:49 pm | Permalink

    Don’t you know? With Chris, it’s do what I say, not what I do. We could rename “The Australian” to “The Hypocritican” without being far off the mark.

  • 2
    Ern Malleys cat
    Posted Wednesday, 1 December 2010 at 3:56 pm | Permalink

    I’m glad you called out Holmes on his response. I was surprised at the near-universal adulation on twitter, including Jay Rosen’s much-retweeted praise.
    I thought he was just as ‘get off my lawn’ as Caroline Overington.

  • 3
    Meski
    Posted Wednesday, 1 December 2010 at 4:06 pm | Permalink

    Where is Twitter considered to be published, anyway? Where its servers are? Where its clients are?

  • 4
    Posted Wednesday, 1 December 2010 at 5:40 pm | Permalink

    @Meski - I think where its readers are. Defamation on the internet is international in scope? eg Dow Jones & Co Inc v Gutnick.

    Having found that the place of publication was the place of downloading, Victoria,
    and Gutnick himself having confined his claim to Victoria, the High Court had no
    difficulty finding that the applicable law was Victorian law.”

    But I could be wrong.
    Above quote from:
    http://www.law.unimelb.edu.au/cmcl/malr/8-1-5%20Rolph%20formatted%20for%20web.pdf

  • 5
    Guy Rundle
    Posted Wednesday, 1 December 2010 at 7:55 pm | Permalink

    Twitter is published in that it’s mass distributed language (writing or speech - defamation on radio is libel, not slander) using ISPs. I presume if you set up a ‘dial-a-number’ and recorded the message that Craig Mitcham, editor of the Australasian, killed the Beaumont children, then its libel. But if you called one person and said that, and Mitcham heard about it, then it’s slander. But whether it falls across the libel or slander line, twitter is clearly under the purview of defamation law

  • 6
    Roberto Tedesco
    Posted Wednesday, 1 December 2010 at 9:42 pm | Permalink

    Chris Mitchell is a very silly boy. And he should go to his room if he can’t play nicely.

  • 7
    Guy Rundle
    Posted Thursday, 2 December 2010 at 1:35 am | Permalink

    actually Hudson may be an IPA flack not a CIS flack. they should wear jumpers….

  • 8
    AR
    Posted Friday, 3 December 2010 at 12:18 am | Permalink

    I look forward to an own goal along the lines of the pyrrhic McLibel case. It’ll be tough on Possetti unless her defense is pro bonobut that’s what happens when the powerful are so badly out of wack with decency that lese majeste again becomes actionable.

  • 9
    Meski
    Posted Friday, 3 December 2010 at 10:53 am | Permalink

    Having found that the place of publication was the place of downloading

    I’m not contending that your quote is wrong, Dave, but that’s going to make for unworkable law. You can cherry-pick the jurisdiction you want, and have the case held there.

    Meanwhile, Posetti probably ought to set up a fund that would let people donate to her cause via Paypal, etc. And/or find a lawyer that hates the Australian. (IMO, finding one that likes them must be harder)

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