Avoiding the libel trap lurking on social media

A number of high-profile politicians, sports stars, business people and other celebrities have got themselves into hot water for publishing defamatory comments on social media.

The action Lord McAlpine took against Sally Bercow, and other Twitter users, after she wrongly identified him as a paedophile on the social networking site, is just one example of this legal minefield.

In this blog, Harrison Drury director Sean Gibbs, an expert in libel and malicious falsehood who has represented both victims and perpetrators, dispels the myths surrounding defamatory statements on social media.

Social media is no different than traditional media

There appears to be a fundamental misunderstanding from the public at large about what they can and can’t say on social media and other online forums, but ignorance is no defence when it comes to the law.

Anyone using social media, blogs, online discussion groups, newspaper comment facilities and so on is just as responsible for unlawful material as the traditional mainstream press would be.

If you wouldn’t say something in a national newspaper or on a radio or television show, you should not say it on social media. The public cannot treat their posts on Twitter and Facebook as they would a private conversation between friends in the pub; even these could be actionable if confidences were broken.

When individuals post material online, they are effectively acting as publishers and their statements are subject to the same laws as newspaper corporations and broadcasters. If they make a statement that is defamatory (and to which one of the defences primarily in these circumstances is truth, honest opinion and publication on a matter of public interest) they will not be immune from prosecution and can be liable for substantial damages and costs.

‘Retweeters’ are just as culpable

As perfectly demonstrated by the Lord McAlpine case, the republishing or sharing of a defamatory statement, such as a ‘retweet’ is also not immune from legal action. Just as the person who made the original tweet or Facebook post is liable, a retweet or a ‘share’ amounts to a further publication, as if that person has made the statement themselves.

Furthermore, the original tweeter can also be responsible for the additional publications caused by the sharing of the original statement, if those subsequent publications were a reasonably foreseeable consequence of the first publication.

This is particular risk for well-known and famous social media users as it is likely their posts will be shared among a much larger audience than just their followers.

It is not a defence to say you were accurately quoting someone else

Similarly, an individual cannot avoid liability by saying he or she was simply repeating a statement made by someone else because it is already in the public domain. The courts consider each new publication to be a libel. The more often it is repeated, the more damage it can do and hence the more libel actions it may provoke.

Another myth that needs to be busted here is that you can’t simply defend a defamatory comment by saying you were accurately quoting someone else’s comment – the publisher has to prove the substance of the underlying allegation.

Also, defending a comment on the grounds of public interest will only succeed if the defendant has engaged in responsible journalism, which is not demonstrated by simply repeating another person’s words.

Not naming the target of your comments can still land you in trouble

People also assume they can’t get into trouble if they don’t name the target of their defamatory statement. However, previous cases have shown it is still possible for the person to be identified even without being categorically named.

For example, if readers of a defamatory statement are able to use their common knowledge of the facts surrounding the statement to identify a person, that person will still have been defamed. Similarly, if it is reasonable to think that people acquainted with the target will identify him or her, they will be defamed in the eyes of those people.

The onus is on the defamer to prove the statements are true

Many Twitter and Facebook users also mistakenly believe that it is for the subject of the comments to prove that the allegation is untrue. The fact is that if the subject of the tweet can demonstrate that it has harmed his reputation, the person who posted the statement has to prove that the tweet is true or that another defence applies.

Under English law the onus is on the defamer to make out a defence (such as truth) and not on the subject to prove that a tweet or Facebook post was untrue.

You can’t hide behind a false identity

Sometimes social media users will resort to using a false name or posting anonymously in the belief it will make them immune from liability. However, English courts can require internet service providers who have identification details to disclose them to the target of the defamatory statement.

For example, the operator of a newspaper comments page can be forced to disclose the IP address of a user which can then be used to identify the person who made the libellous statements.

The size of damages will reflect the damage caused by the defamatory statements

Another myth is that any damages for libel on social media will be small because “it’s only a tweet”. Recent cases have shown that the ‘viral’ nature and wide reach of social media can expose culprits to claims for damages approaching and exceeding six figures, depending on the extent of publication and any other mitigating factors.

For more information on this, or any other litigation matter, contact Sean Gibbs on 01772 258321