Social Media and the Defamation Act
Solicitor James Johnston from Burnetts in Cumbria explains the recent changes to Defamation law in England & Wales.
Professionals in the education sector have grown increasingly concerned over the past few years about the misuse of social media such as Facebook and Twitter, a common theme being that students, parents and even staff have used social media as a forum in which to vent negative views about their school / their child’s school / their place of work. The question often asked is what can be done about it? Is there sufficient for a claim of defamation to be brought?
The question has become particularly pertinent in recent times as the law surrounding defamation in England and Wales underwent significant changes in January 2014 with the coming into force of the Defamation Act 2013.
It is commonly believed that the new Act was introduced in order to rebalance the law in favour of freedom of speech and to limit the number of defamation cases being brought to Court. It was feared by many that such a rebalancing exercise might work against institutions in the education sector. What, after all, would this mean for institutions trying to protect their reputations online, if it was harder to take matters to Court?
There are two types of defamation in England and Wales: libel, which is a defamatory statement recorded in a permanent form (usually written) and slander, which is a defamatory statement in a more transient form (usually spoken). Comments on sites such as Facebook and Twitter are usually treated as libel although there is a grey area concerning “chatroom” postings as these tend to be more transitory in nature and, as such, lean towards slander rather than libel.
A statement will be defamatory if it tends to lower the reputation of the person to whom it applies in the minds of right thinking members of society; the person in question can be identified from the statement and the statement in question is communicated to a third party.
It is important to differentiate between the two because, at the time of writing, it is necessary in most cases for someone who has suffered a slander to be able to prove that s/he has suffered some sort of financial loss in order to successfully bring a claim. This is not the case for a person who has suffered a libel, unless they are operating for profit in which case they now have to prove they have suffered significant financial loss in order to successfully bring a claim for defamation. The requirement of significant financial loss is one of the changes brought about by the new Act.
Regardless of whether or not the injured party is operating for profit, under the new Act, in order to be in a position to bring a claim, s/he must be able to prove that serious harm has been suffered.
Who is liable?
For a person to be liable for defamation, s/he must be the publisher of the defamatory statement. The definition of publisher at common law is very wide. It includes both primary publishers (the person who made the statement) and secondary publishers (for example, the person or organization who makes the statement available to the public, for example: a library, bookshop or internet service provider (ISP).
What defences are available?
A person is entitled to say what they want about another / an organization if they state facts and those facts are substantially true. The person making the statement will obviously have to be able to prove the truth of what they have said.
Likewise a person is entitled to state any opinion they honestly hold, if it is clear that what they are stating is a matter of opinion; they state the basis of the opinion and an honest person could have held the opinion based on any fact that existed at the time of publication. These are the defences of truth (formerly “justification”) in the first instance and honest opinion (formerly “fair comment”) in the second.
Section 10 of the new Act will protect ISPs in circumstances where it is “reasonably practicable” for the injured party to proceed against the primary publisher (the person who made the statement). However, where it is impossible to identify the primary publisher (think anonymous internet trolls), then section 10 will not protect ISPs.
Instead, thanks to the new Act, in such circumstances, the ISP will be able to turn to section 5 of the new Act. Section 5 provides ISPs with a complete defence where they can show that (a) they did not post the statement complained of themselves and (b) it is possible to identify the poster of the offending statement. Accordingly, section 5 puts pressure on ISPs to assist injured parties with the identification of otherwise anonymous posters of defamatory material. If an injured party gives notice to an ISP of a defamatory statement and the ISP fails to take action within a (relatively short) timescale to help identify the offending party, the ISP loses its defence under section 5 and becomes potentially liable.
Order to remove material
Where a successful defamation action has been brought by an injured party, the courts now have the power to order ISPs hosting defamatory statements to remove them. For social media operators, this will mean that even if they can avoid liability for defamation they may nevertheless be ordered to remove any offending material.
So, what should you do about a defamatory posting?
- In the very first instance, depending on the circumstances (including whether or not it is possible), it can be prudent to post a short professional response, stating that the matter is being investigated and a fuller response will be forthcoming shortly. This can reassure those who are reading the post(s) that the matter is being treated with an appropriate level of concern.
- Secondly, analyse what has been said and investigate the matter. Many organisations assume that because something negative has been written about them, it is automatically false and defamatory. Of course there may be occasions where what has been said, although damaging, is factually accurate. In such cases, it would be prudent to seek expert advice in terms of how to manage the matter going forwards.
- If having investigated, you are satisfied that what has been written is both defamatory and not substantially true you have a number of options. Often, in such circumstances, you will simply be looking for the post to be removed and an apology posted in its place. If you can identify the author of the post, (you have a name and a postal address) you can send a letter from a solicitor, making your demands. If those demands are ignored, you can consider whether or not to take matters further. If the posting is truly heinous, you could take the matter to the police and ask them to consider a prosecution under the Malicious Communications Act. If there has been more than one posting, depending on what is written, you might also consider an action for civil and/or criminal harassment against the offending party. If you can prove that serious harm has been suffered as a result of the posting (serious financial loss, if you are operating for profit) then you might consider bringing an action for defamation against the offending party. If you cannot identify the author of the post your best course of action is to contact the ISP requiring them to take steps to give you the identify the offending party. If they do not do so within [days] the ISP will lose their protection under section 5 of the new Act, entitling you to bring a claim against them as well / instead of the offending part
For further information or advice on defamation, contact solicitor James Johnston on 01228 552213 or email firstname.lastname@example.org.
About the author
James is a Partner and Head of the firm’s Dispute Resolution team.
Published: Thursday 1st May 2014