As we become more and more entangled in digital life it is important to remember that just like in other written forms defamation on social media can land you in hot water as well as owing significant damage payments. We have created a complete guide to help you understand the implications of such posts.
The vast majority of online social media content will be harmless and probably only of interest to the circle of friends that the post concerns, however, that is not an excuse to post up abusive statements that can quite easily stray into defamation.
You may think the posts may not gain much attention but think of the example of footballers who go on to be successful and have old tweets dug up in the media. Indeed it has reached the point where companies such as the BBC have social media policies issued to their staff.
What is defamation?
Firstly the definition of defamation is “the action of damaging the good reputation of someone.” This can either be in the form of libel (permanent publication in written material or a recorded allegation on tv or radio) or slander (primarily spoken word – for example starting a rumour verbally).
So what would defamation on social media look like? Essentially it is anything you’ve put online. Whether you’ve posted up a libellous statement on Facebook, Twitter or Trustpilot, slandered somebody on a YouTube or TikTok video or simply blogged on your website, each of these actions could potentially cause a court case to be brought against you.
The main issue is that social media is so accessible that individuals often forget the law and post without thinking of the consequences. Even a single short tweet can be considered defamation in the right circumstances so it is imperative to be wary of the accusations that we make. We only have to take a look across the pond to America to see how serious some accusations can get that originally started on social media.
The strength of the claim will depend on whether the accusing party can prove the damage caused will harm the reputation of either an individual or a business. Section 1(1) of the Defamation Act 2013 states that any post must cause or be likely to cause serious reputational harm, e.g. somebody who has a small following will not be at as great a risk as somebody who has a post that is retweeted thousands of times.
Indeed in this country, a retweet/share can be considered defamation on social media in this country as it is considered a way of amplifying the original post. Take the example of comedian Alan Davies who decided to settle with Lord McAlpine after retweeting false allegations. This isn’t the same in all countries (for example the United States) but in many countries, it will be.
What should I do if I’ve been the victim of defamation on social media?
First and foremost you need to gather evidence of the alleged defamatory statements. Screenshot the statements, save the direct link to the post and record how many times the post was shared and liked. The record should include a date which should also be shown in print outs. You should record any other prominent parties who have shared the post as well as if it was on any external websites as well as who informed you of the original post.
A key point is to remain level headed and refrain from engaging in an argument with the accused party as this could damage your claim. There is even a danger you could make a defamatory statement of your own should you embroil yourself in an online squabble.
Finally, you should contact us as soon as possible. Time limitations apply to libel – you must start proceedings within one year of the post. Additionally, a lack of urgency could show that the post was not in fact damaging so it is imperative you act as fast as you can. There are also other areas that could potentially be worthy of action such as a breach of privacy or confidence, breach of GDPR regulations or even harassment.
Additionally, we can also make recommendations on how to deal with anonymous posters (on websites such as Reddit) requesting that posts be removed. We can also assist in seeking a Norwich Pharmacal Order – a court order that will help identify the anonymous poster by third parties (i.e. social media companies) who have become ‘mixed up’ in wrongdoing and will then be required to disclose documents.
What defence can be used against defamation?
When we provide advice on whether you have been a victim of defamation on social media we will consider if any of the below defences apply when evaluating the strength of your claim:
- Truth – If the alleged defamatory statement is in fact substantially true then the case will not be successful. The defendant will though have to show that this is the case (as opposed to the accuser proving it is a lie).
- Honest Opinion – If the defendant can prove that the statement was in fact an opinion (e.g. the defendant thought customer service was poor) then the claim may be defeated. There are conditions that need to be met to meet this standard:
- It must be shown that it was a statement of opinion
- The statement complained of indicated, whether in general or specific terms, the basis of the opinion.
- An honest person could have held the opinion on the basis of any fact which existed at the time the statement complained of was published
- Public interest – The defendant will have to show that the statement made was a matter of public interest and that it was reasonably believed that the statement being published was in fact a matter of public interest.
- Privilege – A slightly more complex concept – The broad concept is that individuals in some form of public office are required to be able to speak freely. A good example is parliamentary privilege where statements in the House of Commons/Lords effectively give MPs immunity from defamation cases. This is what is called absolute privilege. Another type of privilege is called qualified privilege where somebody has a duty to make the statement in good faith (for example the press). If however it can be proved that the statement was made maliciously then the defence can be defeated.
- Website Operators – This is a new defence that was added in the Defamation Act 2013. Essentially a case cannot be brought against a website operator or directly social media platforms directly for a post made by one of their users. Prior to the introduction of this defence, most operators would take down statements claimed as defamatory with minimal investigation to protect themselves which was effectively limiting free speech.
Outcomes of winning a defamation on social media case
There a number of outcomes from winning a case against somebody for defamation on social media:
- Removal of the post
- A public apology
- Clarification of the statement
- Damages/compensation which will be proportionate to the effect of the defamatory statement
- An undertaking (promise) not to repeat the claims
In some circumstances, it may be possible to seek an injunction against a defamatory statement being posted online. This prevents the defendant from repeating these claims and if they do so they will face further punishment.
Do you have a defamation on social media dispute that you’d like to discuss with the team? We have offices in London and Hertfordshire and can arrange a call to provide some initial advice.
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