Online Defamation, and Social Media. Part 1

The term defamation is thrown about frequently when one individual or company are subject to some negative comments which adversely affect their reputation. This is usually divided between Libel and Slander. The distinction between the two is dependent on the way in which the statement is made. Libel will be apparent if there is a lasting statement made within the publication such as broadcasting or print, or for the purpose of this article online publication. Slander is usually only actionable after words have been spoken to another or a gesture has been made resulting in some damage.

As technology and the use of social media has increased so has the incidents of defamation .

We receive weekly calls from people who wish to have advice on their rights after someone has posted a statement or commented on another post with harmful remarks that could or have damaged the reputation of the individual.

The Defamation Act 2013 (the ‘Act’) in particular section 1 of the Act sets out what is required.

It provides that a statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the person. Section 2 of the Act provides that it is a defence to an action for defamation for the defendant to show that the imputation conveyed by the statement complained of is substantially true.

A more difficult area is the defence honest opinion.

Social media is at its simplest a forum for individuals to provoke, to exchange ideas, opinions and updates on everything from sex to politics to beauty and lifestyle choices. This makes it far more likely that someone will rely on the defence of honest opinion. The Act has some conditions, namely that (1) the statement complained of was a statement of opinion; (2) the statement complained of indicated whether in general or specific terms the basis of the opinion; and (3) that an honest person could have held the opinion on the basis of (a) any fact which existed at the time the statement complained of was published; (b) anything asserted to be a fact in a privileged statement published before the statement was made.

Now the difficulty which horrifies many social media users is what if this is the opinion of one and then a secondary person re posts this statement without any justification or proof that the statement is either true or could hold the defence of honest opinion. In part two of this article we shall look at 4 cases, namely:

  • Stocker v Stocker [2018] EWCA Civ 170
  • Al Amoudi v Brisard and another [2006] EWHC 1062 (QB)
  • Monroe v Hopkins [2017] EWHC 433 (QB).
  • Zahawi v (1) Press TV and (2) Press TV Limited [2017] EWHC 1010 (QB),

The material which is shared, posted etc is considered as a separate act of publication and could therefore give rise to a separate cause of action by a claimant. Essentially, every person that publishes, shares or re posts defamatory material may be liable for its publication. Note, that there are naturally many issues with taking action against those individuals who ‘republish’ defamatory material, especially with the difficulty in identifying individually or having the funds to make an individual claim so it is more practical to take action against the author, editor and commercial publisher and try and produce evidence of the republication as was shown in the Zahawi case.

Lawdit can help with this whole process and will happily explain everything over the phone or in a free consultation meeting before suggesting the best course of action. Note that there are some hurdles which will need to be passed and it may be that such statements are protected by some defences as outlined above, and some others which have not been explained in this article. The most important thing is to ensure you do not leave things to fester or it is possible for such statements to get out of control, examples can be seen in the case law above.

 

Some top tips for defamation on Twitter. We shall look at Facebook and other mediums in Part 2

  1. Try not to rise to the bait. Before you come to us, visit Jack @ Twitter.
  2. Often this is exactly what the trolls want you to do and you may well be hurting your claim or in fact committing libel yourself.
  3. Stay calm, be smart and retain the evidence for example by taking a screen shot. Make sure you date stamp all the evidence and collect all retweets and any printing outside of Twitter.
  4. Consider how you could have possibly suffered any damage which is a huge factor in defamation – for example you may have had a job interview at school cancelled after the post tweet/retweet.

You have one year, so don’t hang about! The limitation period for issuing a claim in libel is one year and the time limit is strictly applied.

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