19 December 2018

Think before you tweet…

Social media: the ability to say whatever you like with just a few taps on your smartphone or device – right? Not exactly.

Social media and review platforms are so easily accessible that a comment can be read by thousands, if not millions, within seconds of clicking a button, and before you know it, you may have published a defamatory comment to the world.

Quite often controversial tweets are made with the sole purpose of garnering public interest, re-tweets and views. Little thought is given to the damage that it might cause or the consequences that follow. Recently the Daily Telegraph landed themselves in hot water over their coverage of Geoffrey Rush and allegations that he had behaved inappropriately towards a co-star, which led to a high profile defamation trial in Sydney. For the majority, statements on social media will be harmless but high profile defamation cases are a stark reminder to consider carefully before posting your thoughts on social media platforms.

So what are the things to look out for to avoid publishing defamatory comments, and what do you need to consider if someone has made malicious, false and potentially defamatory statements about you?

Below is a brief guide to defamation:

Understanding the form

There are two categories of defamation:

a) libel – defamatory statements published in a permanent form
a) slander – transient statements e.g. spoken statements

A defamatory statement is one that is published to a third party and tends to lower the subject in the estimation of right thinking members of society. It must have caused or is likely to cause serious harm to the reputation of the claimant;in the case of a company or trading entity, it must have caused or is likely to cause serious financial loss. The statement must be able to identify a legal person (i.e. including company and trading entities).

Time Limit

A defamation claim is typically subject to a one year single publication rule to initiate proceedings. Therefore if the statement was made more than one year ago, you would be out of time to bring a claim. Where the same person republishes the statement in public in materially the same manner as the earlier publication, the first date of publication will be the relevant date (i.e. the date of the defamatory statement). However, this is always subject to the court’s discretion.

Defences

The typical defences are:

a) truth;
b) honest opinion;
c) qualified privilege – a partial defence where the defendant can prove that the publication was in the public interest;
d) public interest defence – the publication was responsible and in the public interest;
e) a statutory defence for operators of websites where complaints about defamatory statements are processed in compliance with the Defamation (Operators of Websites) Regulations 2013; and
f) absolute privilege – a complete defence applying to statements made in certain situations (e.g. in Parliament, between solicitor and client, statements to the police in a criminal investigation).

Who is liable?

Other than the person that made the defamatory statement, the website operator or ISP might find themselves liable. In most cases where the original author is identifiable, this won’t be applicable. However in limited circumstances, they may be liable under the E-Commerce Regulations 2002 and Defamation Act 2013.

What can you do if you think someone has made a defamatory statement?

As soon as you are aware, contact the website provider or publisher to take the comment down. Early action is always advised to minimise damage to reputation and financial loss..

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About the Author
Richard Morgan, Partner, Head of Dispute Resolution, Defence, Security and the Forces Sector
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