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Social media and the rise of defamation

26th September 2019

Social media and the rise of defamation

A business can spend years building a reputation only to lose it in seconds.

The rise of social media has allowed businesses to reach out quickly and directly, but while the rise of the internet age has opened many more doors for those businesses, it has also presented a larger and more accessible platform to anyone looking to disparage a business.

Here Higgs & Sons Partner Matt Dudley, who specialises in all aspects of commercial litigation, looks at the laws surround Defamation, and how the rules are applied in terms of social media.

Defamation (the legal position)

Defamation is the publication of a statement which has caused or is likely to cause serious harm to a person’s reputation. It encompasses both libel (where the defamatory material is “lasting”, i.e. it is written or broadcast, including material published online) or slander (where the publication is more “transient”, including spoken word, gestures or conduct).

Liability does not stop with the author of a libellous post on social media but can also be attributed to those people who share or publish the post of another (i.e. republishers of a defamatory statement). 

What does a Claimant need to prove to bring a claim in Defamation?

In order to bring a claim in defamation, the Claimant will need to show that the statement complained of:

  • Is defamatory – meaning that an ordinary person would think less of the Claimant as a result of the statement. The meaning of the words complained of is key in this regard, principally because different people will interpret a statement in different ways.
  • Identifies or refers to the Claimant – a defamatory statement does not need to expressly refer to an individual by name; it is sufficient that the Claimant can be identified from the publication.
  • Is published to a third party. Publication includes statements published on social media platforms. Each publication of a statement constitutes a separate publication that technically gives rise to a separate claim.
  • Has caused or is likely to cause serious harm to the Claimant’s reputation.  A claim simply based on injury to feelings is therefore insufficient. In respect of a company, serious harm means serious financial harm.

Who can bring a claim in Defamation?

  • An action for defamation is personal, in that only the person who believes they may have been defamed can bring proceedings.
  • Defamatory statements regarding a deceased person are not actionable.
  • Legal entities such as companies may also bring a claim in defamation.

Is there ever a defence to Defamation?

Even if a Claimant can satisfy all of the above elements, the maker of the statement, known as the Defendant, may seek to advance a defence to the claim. These defences principally comprise:

  • Truth – it is a complete defence if the Defendant can show that the statement is substantially true. It is not necessary to prove the truth of every detail, just the crux of it.
  • Honest opinion – if the statement was one of opinion, the Defendant will have a complete defence if he/she has set out the basis of that opinion, and an ordinary person may reasonably have held that same opinion at the time of publication.
  • Publication on a matter of public interest – if the Defendant can show that the statement complained of was, or formed part of, a statement on a matter of public interest, and the Defendant reasonably believed that the publishing of the statement complained of was in the public interest having regard to all the circumstances of the case, he/she will have a complete defence.

In addition to the above, a website operator/host may have a defence if they can prove that they did not post the content themselves. However, this defence can be defeated if the website operator/host does not adequately address a notice of complaint from the Claimant.

The Impact of Social Media

Social media allows the public quick access to platforms that have the potential to reach a large audience. In most instances, a post on Twitter or Facebook is fleeting and will go unnoticed. However, the ability of posts to trend or go viral and be endlessly liked, shared and copied also means that any posts that are defamatory do have the potential to be seen by people at an extraordinary rate. The damage that can be done through a scathing post on social media can be severe and due to this danger, seeking immediate legal advice if you are the victim of libellous actions is critical in order to minimise any damage to your business’s reputation.

Anonymity

What if you are defamed by someone anonymous?  Many social media platforms have “take down” procedures and many may prohibit the use of their service for defamatory purposes. Difficulties may come from providers based in the US, who typically have more robust protections.

However, Facebook, YouTube, Twitter and others agreed a code of conduct with the European Commission regarding their responses to unlawful hate speech posted by their users. These platforms have a responsibility to review and disable relevant content when necessary.  Each platform has its own terms of service.

Third party webhosts and internet service providers can be compelled to reveal key information which can ultimately lead to the identity of anonymous publishers being revealed.   

Matt Dudley said: “If you consider that you have been defamed then immediate action is critical, and here at Higgs we will work with you to devise an appropriate strategy to achieve your objectives. We have successfully pursued Court applications revealing the identity of anonymous bloggers.”

“It is vital to gather as much evidence as possible about what has been published, including copies of written words or accounts of what has been said, when and by whom. In relation to online material, taking photographs, screenshots and printing the defamatory material is recommended.”

“If you choose to issue court proceedings, the remedies available to you are: an injunction, publication of the court’s judgment, an order to remove the statement, and damages. The court can publish a true version of a defamatory statement and order the defendant to publish it.”

For further information or advice contact a member of the Higgs & Sons Dispute Resolution team on 0345 111 5050.

 

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