Sticks and Stones: Defamation and Social Media

Following the General Elections this year and amongst the casualties was Diane Abbott, the Shadow Home Secretary. A woman who has served in public office for 30 years took a leave of absence, citing sickness, two days before the polls, following vicious abuse in the tabloids and on Twitter and Facebook. Ms Abbott had stated she is the victim of online racial abuse and misogyny daily[1], but when does this type of insidious rhetoric cross the line and become defamation?

Many young people can barely remember a time when social media did not dominate social and political life.Facebook and Twitter have been part of our lives since 2006. Blogs are now a mainstream source of knowledge and news, with very little legal restrictions on what is published.

Despite being one of the dominant ways young people (and increasingly Generation Xers and Baby Boomers) communicate, research conducted in 2016 showed that 46% of 18- to 24-year-olds were unaware they could be sued for tweeting an unsubstantiated rumour about another person.

In addition, very few people are aware that sharing defamatory posts on social media may be regarded as an endorsement, significant enough to trigger legal action. A libel claim can also follow even where the person is not directly named, so long as they can be identified from what is posted.

Deleting the post does not prevent a claim as it may have been shared elsewhere on social media; however, the length of time a defamatory statement is visible may affect the amount of damages awarded.

Several recent court cases illustrate the growth in libel claims over the past few years. They include:

• In 2015, Jason Page of Telford UK, was left with a £100,000 legal bill for maliciously trolling an American lawyer. He called attorney Timothy Bussey a scumbag who loses 80% of his cases. Mr Bussey stated that the baseless attack, which remained online for 12 months, cost his law firm dearly in both reputational damage and lost clients.
• Stoker v Stocker (2015) involved a divorced couple. The husband sued his former wife for defamation after she made comments about him on Facebook during a conversation with his new partner, Deborah Bligh. She then made similar comments in an email. The Facebook conversation was visible to Ms Bligh’s Facebook friends. Even though neither women was aware that the Facebook exchange was not private, the judge found Mrs Stocker liable on the basis that she had not shown that she had no reason to believe that the exchange would be visible to the friends. He cited the 1891 decision of Pullman v Hill, where the plaintiff dropped a letter in an open card containing defamatory matter. It was held the card was likely to be read by somebody else and therefore the plaintiff effectively published the information containing the defamatory statement. The judge awarded the husband £5,000 which he declined to accept. However, the wife was ordered to pay almost £200,000 in costs. She has been granted leave to appeal, with one of the grounds being was she responsible for the republication of the conversation to the Facebook Friends.
• In a recent case that garnered a lot of media attention, a mother who started an online petition calling for the removal of the head teacher of St John’s Preparatory School, Calliope Tardios, was ordered to pay damages totalling £95,000, as well as being subject to an injunction preventing her from repeating the allegations. The claims made by the mother, which included the comment that Mrs Tardios had caused immeasurable psychological and mental damage to children at her school, and misled parents into believing she is a disciplinarian when she is in fact a bully, had caused one family to remove their child from the school and admissions to drop.

The common law test for the definition of defamation comes to us from the case of Sim v Stretch [1936] 2 All ER 1237, which held that the Court needs to ask would the words tend to lower the plaintiff [claimant] in the estimation of right-thinking members of society generally? If so, then there may be defamation.

To be successful in a claim for defamation you need to show:

• a defamatory statement was made
• an adverse impact resulted from the statement, i.e. ‘lowered the claimant in the estimation of right-thinking members of society.’
• the statement refers to a person who can be identified
• the statement was published
• there is no lawful justification or other statutory defence

Unlike most causes of action in civil law, the defendant has the burden of proof in libel cases. The claimant only has to show:

1. a statement was made; and
2. it was defamatory

The defendant is responsible for proving the statement was true or establish a defence for defamation.

The Defamation Act 2013 was designed to offer protection to those engaging in a strong debate, and to put an end to libel tourism (where claimants bring a case for slander in English courts, rather than in America or other countries which offer more defences to the allegation of defamation).

Under the Defamation Act 2013, claimants must show:

• the respondents slander caused them serious harm, (companies must prove serious financial loss)
• an English court is clearly the most appropriate place in which to bring an action in respect of the statement.”

Academics and scientists publishing peer-reviewed material enjoy greater protection under the Defamation Act 2013, as do website operators where allegedly slanderous statements are published by users rather than staff.

Claimants are unable to sue more than one publication if the material is distributed across other media.

Respondents can defend a defamation claim if they can prove one or more of the following:

• the statements made were true
• the publication was in the public interest. (Qualified privilege provides a partial defence)
• the publication was responsible and in the public interest.
• That any complaints about defamatory statements have been processed in compliance with the Defamation (Operators of Websites) Regulations 2013
• Absolute privilege. This provides a complete defence for statements made in certain situations, e.g. in Parliament, between solicitor and client, statements to the police in a criminal investigation
• the statement made was an honest opinion.’

Under Section 4A of the Limitation Act 1980, a claim for libel must be brought within one year from the cause of action. The Court does have the discretion to dispense with the limitation period if it is equitable to do so.

The remedies available for a successful defamation suit include:

• damages
• an interim injunction to prevent further publication
• an apology or a retraction

With the internet and social media now such a powerful tool, allowing anyone with a grudge to make slanderous remarks about a person or business, it is imperative to seek legal advice if you become a victim of apparent libel.

Libel claims generated by social media content and blogs are increasing, despite the overall drop in defamation cases as a whole. Given our ever-increasing love-affair with social media, and the reluctance of the companies who run them to police the contents appearing on their sites to any great degree, this trend is unlikely to dissipate anytime soon.

An old adage is especially true of todays digital age: mud sticks. Untrue statements have the power to destroy businesses, careers and personal lives.

It is vital to act to protect your personal and commercial reputation.

Saracens Solicitors is a multi-service law firm based in London’s West End. We have dedicated and highly experienced civil law solicitors who can advise you on defamation claims and defences. For more information, please call our office on 020 3588 3500.

[1] https://www.theguardian.com/commentisfree/2017/feb/14/racism-misogyny-politics-online-abuse-minorities