20 November 2012
The action Lord McAlpine is reportedly taking against Twitter users for falsely suggesting he was involved in child sex abuse reveals 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 is 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
Myth 1: A false and defamatory statement posted on Twitter or in a blog is 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.
Myth 2: A retweet of a false and defamatory tweet is 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. The English Court of Appeal has acknowledged the likelihood that content on social media can go viral and quickly go beyond its initial intended audience and the source of the content can be responsible for that additional coverage. 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 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.
Myth 3: 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.
Myth 4: There can be no liability for simply repeating what someone else has said or something that is in the public domain
It is not a defence for an individual to say that he was simply repeating a statement made by someone else. This law is designed to protect against the spreading of false and defamatory rumours. Also, just because something is out there does not make it OK to repeat. 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.
Even if you cannot prove that the tweet is true, there could be a credible public interest defence. However, in previous cases the courts have made it very clear that they expect a defendant to demonstrate that he has engaged in responsible journalism before the defence will succeed, including verifying the facts and giving the subject an opportunity to comment. This will not be possible if someone has simply repeated the words of someone else.
Myth 5: If no one is expressly named in a defamatory statement, no one can sue
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 the person, the 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.
Myth 6: It is for the subject of the tweet to prove why it is untrue
This myth gets the burden of proof the wrong way round. 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 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.
Myth 7: If a statement is made only to friends on Facebook, legal action will not be possible
If a defamatory statement is made to a third party, the target can sue. If the statement was made to a couple of people (e.g. on a private Facebook account which can only be seen by friends), a court may say it would be an abuse of process to allow the claim to proceed. However, if posting to friends is to a larger and wider number of people, legal action may well follow.
Myth 8: If a tweet about someone based in England is sent from overseas, it is outside the reach of the English courts
English courts are able to deal with any legal wrong (such as defamation) that happens in England. Someone can be defamed in England (and a wrong can happen here), even if the statement was made or posted from a foreign country, if the statement was read or accessed in England. It is the place of publication or access that matters, not where it was made. Courts will assess whether there was a sufficient readership in England and whether the target had a relevant connection to England before they will hear a complaint. But just because the maker of the statement was overseas will not mean he can avoid liability in England. If, for example, a tweeter has a substantial following in England or the statement formed part of an English trending topic, it is likely that the wrong will have happened in England.
Myth 9: Using a false name or posting anonymously means that the poster is immune from liability
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 of a user who has made defamatory statements. If, for example, that order revealed only an anonymous IP address, the ISP of the IP address can be ordered to disclose the details behind the account and so on. Legal proceedings can also be served on anonymous users through means such as Facebook and Twitter if the court allows.
Myth 10: If a statement is made but then immediately retracted, there can be no liability
This confuses the possibility that damages will be reduced if the statement is removed quickly with the possibility of avoiding liability in the first place. Simply removing the statement does not avoid liability. The fact that the defamatory statement has been made may be enough to bring a claim: actual damage to the target is not necessary to prove. In any case, if a statement has been made and then retweeted or republished elsewhere, the maker of the original statement can be responsible for the retweets or further publication even after the original statement has been removed. Additional problems can be caused by the fact that electronic communications can be stored on servers and by search engines, even if deleted from the place of original publication.
Myth 11: Any damages would be small because it is “just” a tweet
People could 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.