Defamation on Social Networks
This is a guest post by Phil Brown of SimpleLegals.co.uk
With the rise of social media we are increasingly seeing that defamation cases are no longer the preserve of the tabloid press, and social media users are becoming drawn into the debate as they post tweets and Facebook status updates that could get them into hot water. So what exactly is social media defamation, and what can you do to avoid liability?
If a claimant wants to bring an action for defamation then they must show that the words complained of:
- are defamatory;
- identify or refer to the claimant; and
- are published by the defendant to a third party.
What makes a statement defamatory?
The 1936 case of Sim v Stretch set out the definition of defamation whereby if the statement “tends to lower the claimant in the estimation of right-thinking members of society generally” then it would be deemed to be defamatory. This has been further extended to include statements that would lead people to avoid dealing with the claimant or expose him or her to ridicule, even if there was no moral reason for people to think the worse of the claimant.
Does the claimant need to be named?
For a statement to be defamatory the claimant does not need to be named, but the statement must give enough details for the claimant to be identified. The issue can also arise whereby a person sharing the same name as the intended target of the statement may be able to make a claim for defamation if it appears that the statement targeted them.
What amounts to publication?
Publication is simply the communication of the statement to another person or persons, whether that is one person or millions. Where the statement is in writing or some other permanent form it will constitute libel; where it is spoken or in some other temporary form it will be slander.
It is also important to consider who published the statement, as this will not only include the author of the statement but also anyone who ‘further publishes it’. Historically this would mean that a claimant could not only sue a journalist who wrote a story, but also the newspaper who published it. With the dawn of the internet this has increasingly included website operators who ‘publish’ users’ comments online.
There are some very important defences to a claim for social media defamation that will prevent any liability:
- that the statement is true or substantially true (as immaterial errors will not prevent the defence from succeeding);
- that the statement is honest comment on any matter of public interest, provided that it is not done maliciously. This does not apply to statements of fact, which are either true or not, but instead to statements of opinion, however the facts forming the basis of the comment must be true. The opinion can be exaggerated or prejudiced, but it must be honestly held;
- where a defendant has behaved responsibly then they will be entitled to what is now known as the “Reynolds public interest defence” designed to protect journalists acting responsibly on matters of public interest. In considering whether a journalist has behaved responsibly the court would look at the credibility of the journalist’s source, any attempts made to verify the information and whether the claimant was given opportunity to respond and such response published;
- that the defendant is entitled to a defence of privilege. Examples of privilege cover not only statements made in court proceedings or in parliament, but can also cover statements such as employment references (provided that statements have been made in good faith and not maliciously);
- that the defendant had only a secondary and/or innocent role in the publication. This defence of ‘innocent dissemination’ is often called the ‘internet defence’ and can be used by website operators to escape liability for content created by the website users. It’s not without its difficulties though as the defendant needs to show that they were not the author, editor or publisher of the statement; took reasonable care in relation to its publication; and did not know or have any reason to believe that the statement was defamatory.
If a claimant brings a successful action for social media defamation against you then there is no fixed amount of damages payable, and you will probably be on the hook for a proportion (if not all) of the claimant’s legal costs. It can get very expensive very quickly as it is not necessary for the claimant to suffer any financial loss in order to be awarded damages (although there is an unofficial ceiling on such damages where the claimant suffers no financial loss of £265k).
Practical steps to avoid liability
We are increasingly seeing that people are being tracked down despite seemingly anonymous poster ID’s, due to cross-referencing posts with other accounts on other social media sites and the tracking of IP addresses. Quite simply the best practical advice we can offer is this. You need to think before you post and ask yourself this question:
Would I be happy for this post to be published in a National Newspaper and clearly attributed to me?
If not, then don’t post it.
(Absolutely – this is the advice I always give to my clients – Naomi)
If you run a forum or other website which allows for user-generated content, then you should check out my free legal guidance note on Defamation – guidance for website operators available from SimpleLegals.co.uk, and which goes into further depth in respect of the defences available to website operators against liability for user-generated content.
Phil Brown is a commercial solicitor specialising in the IT sector and regular contributor to SimpleLegals.co.uk, an online legal resource site for small businesses and startups offering free legal guidance notes, downloadable template documents and company formation services.[hr]