Media lawyers Niri Shan and Adam Rendle dispel some of the myths around social media and English libel law.
The action Lord McAlpine is reportedly taking against Twitter users for falsely suggesting he was involved in child sex abuse has revealed a number of “myths” about the legal responsibility in England for false and defamatory tweets and other statements on social media. We expose and correct those myths here. In short, Twitter users and anyone else using social media are just as responsible for unlawful material as the traditional and mainstream press.
Ignorance of the law is not a defence. The message is clear: if you should not say something in a national newspaper or on the sofa of a news show, you should not say it on Twitter. The public cannot treat their posts on Twitter and Facebook as they would a casual chat to a couple of friends in the pub.
The first myth to dispel is the most obvious. Recent events have made it clear that a false and defamatory statement posted on Twitter or in a blog is not immune from legal action. If a tweet or blog post is defamatory, untrue and cannot be defended, the maker of the statement can be liable for defamation and for substantial damages. As Lord McAlpine’s actions demonstrate, formal legal consequences may well follow.
When individuals post material online, they act as publishers and their publications are subject to the same laws and are as legally responsible as those of professional publishers, such as newspapers or broadcasters.
A retweet of a false and defamatory tweet is also not immune from legal action. Just as the tweeter is liable if the tweet is defamatory, untrue and cannot be defended, so the retweeter will be liable. A retweet amounts to a further publication, as if the retweeter has made the statement himself. The person who retweets that material will be responsible for the content of that retweet.
The original tweeter can also be responsible for the additional publications caused by the retweets, if retweets were a reasonably foreseeable consequences of the first tweet. Well-known and famous tweeters are particularly at risk, as it is particularly likely that their tweets will be shared among a much larger audience than that of their followers. This principle would also cover mainstream media picking up on tweets: the original tweeter could also be responsible for the additional publication by the media if a reasonable person would have appreciated that there was a significant risk that that could happen.
Similarly, an individual cannot avoid liability by saying that he was simply repeating a statement made by someone else because it is already in the public domain. This law is designed to protect against the spreading of false and defamatory rumours. The courts consider each tweet to be a libel, and the more often it is repeated, the more damage it can do and the more libel actions it may provoke.
Furthermore, when it comes to proving the truth of the allegation, it is insufficient to point to the fact that somebody has been accurately quoted: the publisher has to prove the substance of the underlying allegation. 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.
It is also incorrect to assume that simply inviting comments means that there is no liability for those comments. If it is reasonably foreseeable that the invitation to make comments will result in defamatory statements, the person making the invitation could be liable for the statements that follow. Someone asking on a blog: “Do you think Mr X is a terrorist?” may well be instigating, and therefore responsible for, any defamatory responses which are likely to and predictably do follow.
It is not always possible to avoid liability by not expressly naming the target of a defamatory statement. The target of a defamatory statement can still be identified and therefore able to sue, even without being expressly named. If the facts in and surrounding the defamatory statement known by the readers of the statement add together to identify a person, that person will have been defamed. Similarly, if it is reasonable to think that people acquainted with the target will identify him, he will be defamed as regards those people.
Twitter users also commonly misunderstand how the burden of proof operates in law by mistakenly believing that it is for the subject of the tweet to prove that the allegation is untrue. In fact, if the subject of the tweet can demonstrate that the tweet has harmed his reputation (i.e. is defamatory), the onus shifts to the tweeter to prove that the tweet is true or that another defence applies.
The burden of proof under English law is on the tweeter to make out a defence (such as justification) and not on the subject to prove that the tweet was untrue. Allegations that someone is a child sex abuser are obviously defamatory; it then falls to the maker of those allegations to prove that the allegations are true or that another defence applies.
There are also widespread misconceptions regarding the process of suing someone for libel originating on social media. For example, there is a belief that if a tweet about someone based in England is sent from overseas, it is outside the reach of the English courts. In fact, English courts are able to deal with any legal wrong (such as defamation) that happens in England. For defamation, it is the place of publication or access that matters, not where it was made.
Sometimes tweeters will resort to using a false name or posting anonymously in the belief that this will make them immune from liability. But a social media user may still leave a trace which could identify him. English courts can require intermediaries along the way who have contact and 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 identity and/or ISP of a user who has made defamatory statements. The internet service provider for that IP address can then be ordered to disclose the identity of the person who used that IP address. Legal proceedings can also be served on anonymous users through means such as Facebook and Twitter if the court allows.
Another myth is that any damages for libel on Twitter would be small because it is “just” a tweet. Recent claims show that such thinking is far from the truth: tweeters can be exposed to claims for damages approaching and exceeding six figures, depending on the extent of publication and any other mitigating factors, such as a swift public apology.
In England’s first libel case involving Twitter, New Zealand cricketer Chris Cairns was awarded £90,000 in damages after he was wrongly accused of match-fixing by Lalit Modi on Twitter, the former chairman of the Indian Premier League.
In explaining his ruling, the Lord Chief Justice said that as a consequence of modern technology and communication systems, stories had the capacity to “go viral” more widely and more quickly than ever before. He said the scale of the problem is “immeasurably enhanced” by social networking sites. This “percolation phenomenon” could be taken into account when awarding damages. This should, of itself, dispel any suggestion that different rules apply in the online and social media worlds.