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To Tweet or not to Tweet? That is the question

To Tweet or not to Tweet? That is the question

Q: When is a private conversation not a private conversation?

A: When it’s taking place openly on Twitter

We live in the age of social media. Our thoughts, hopes, fears and daily activities are logged, digested and commented upon by any of the 2.5 billion people who have access to and use the internet daily.

Now that every written word/picture, selfie or tweet is recorded for the entire world to see, many social media users are starting to question whether their conversations and comments are private or the equivalent of a internet broadcast to the masses.

 What happens when Twitter + Libel = Twibel 

High profile defamation cases such as Courtney Love’s libel (or ‘twibel’ as it is being called) victory over her former lawyer have opened people’s eyes to the potential risks of being sued for libel for expressing themselves via social media.;  be that via Facebook, Twitter, Google+, LinkedIn or Tumblr.

So what are the risks of saying whatever comes into your head online and how is centuries old defamation law adapting to this modern age?

Facebook appears to be safer than Twitter, but only marginally. Facebook users can adjust their settings so that a small selection of ‘friends’ only can view their personal information and comments.  However, on Twitter, if the user’s profile is public, then the tweet can be seen by anyone and this can be dangerous for the tweeter as it is more difficult to control who can view the content of the tweet.

This doesn’t mean that Facebook users are safe from potential libel claims: Facebook users who send private messages have to be careful to ensure that those messages are not shared with others or with the public at large but in reality, they have little or no real control over this:

What is going to shock a lot of Facebook users is the fact that if they do share innocent but potentially defamatory statements with a small group of friends, they can then be held responsible if those friends repost that statement. The law of the land is constantly evolving to take into account the changing landscape of our social media usage. It faces an interesting challenge when trying to balance our ‘right to free speech’ with protecting the ‘right to privacy’.

 The Defamation Act 2013

The Defamation Act 2013 (the Act) was introduced to redress the balance between free speech and our ‘right to reputation’ more in favor of free speech. So what’s changed and how does it affect you?

Previously, the courts took the view that everytime a defamatory comment was repeated on a new webpage or publication online, this was seen as a ‘fresh publication’ of that defamatory statement and therefore would give rise to a new cause of action, leaving online publishers in a position of potentially endless exposure to claims in defamation.

The Act has now introduced a ‘single publication rule’, so that generally, the time period for bringing a defamation claim runs from the date of the original publication only.

It also tries to place more responsibility on the actual authors of the web posts and in certain circumstances, provides a defence for those, such as social media platforms and internet service providers who are neither authors, editors or publishers of defamatory statements.

The Act also introduces new regulations for website operators which must be followed if the website operators wish to take advantage of the new defence which can absolve them of legal responsibility for material posted on their site.

These changes come alongside a requirement for claimants to show that they have suffered ‘serious harm’ before bringing a claim, which in the case of a company, will mean showing serious financial loss. The aim of this change is to act as a filter, disposing of trivial or time-wasting cases at the outset.

What do these changes mean for you?

The net result of the new Act is that it will be more difficult, evidentially, for defamation claims to be pursued but on the other hand there will also be more parties who can be pursued. Getting professional advice early so you know where you stand will save costs in the long run and get you the best possible result.

For web users, it also means thinking before that quick tweet, blog or comment. The law is clear that citing repetition of a defamatory comment does not amount to a defence to a defamation claim (as Sally Bercow learnt the hard way, after her now infamous tweet about Lord McAlpine).

As for journalists, we can only hope that it will result in more responsible and better researched publications. Although newspapers have been granted a new defence of “responsible publication on matters of public interest”, this does not necessarily mean that ‘anything goes’. The days of sloppy journalism are hopefully coming to an end and we are all trying to do our bit to promote high quality publications. Saracens recently successfully sued a number of broadsheet newspapers in order to protect the reputation of one of our high profile clients who had been defamed not once but twice by them same broadsheet newspaper.

A word to the Wise:

Ultimately the rulings and judgments that follow will show whether a fair balance has been struck between freedom of expression and protection of reputation. For the ordinary reader, make sure that you do not make defamatory statements about others which can be shared with the general public. Observations and opinions made in private conversations between individuals are relatively safe but you must make sure that these statements remain private. Make sure you trust the person/group that you are talking to but to be as safe as possible, try avoiding making defamatory statements about others on a public forum if possible.

 As that lovable rabbit Thumper so eloquently put it in the Disney movie Bambi:

 “If you can’t say anything nice… Then don’t say anything at all.”

* This information has been provided as a general guide only, and does not constitute legal advice.  Please consult a lawyer if you require advice on any specific set of facts.  No liability can be accepted for any action taken or not taken as a result of this information.



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