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Libel and social media: a closer look at how 140 characters can end in a lawsuit

BusinessFeatures
by Dean Wilson
, 06 Jun 2013Features
Libel and social media: a closer look at how 140 characters can end in a lawsuit

As more people embrace the Internet, and particularly social media, the sharing of information has become a major asset. It is also a potential threat, as the entire world opens up as an audience to our words and actions – some of which could haunt us forever.

While most Internet users are aware of certain obvious illegal activities, such as piracy, hacking and child pornography, there is a remarkable lack of education when it comes to the issue of defamation, which could carry equally harsh penalties.

With that in mind, we're going to explore the growing number of libel cases relating to the Internet and social media and look at where the law stands on the issue. We'll also examine what changes to the law are on the horizon, and see what the legal experts have to say. If you think the Internet offers a free rein to say whatever you want, prepare for an eye-opener.

Recent libel cases

The recent UK High Court ruling that Sally Bercow's tweet about Lord McAlpine was libellous shows that one does not even have to explicitly defame someone for it to represent libel. The offending tweet was:

“Why is Lord McAlpine trending? *innocent face*.”

Without the last part, Bercow - wife of Commons Speaker John Bercow - could have argued that she was asking a question. Rather, the typed emoticon suggests the answer, insinuating that Lord McAlpine was guilty of a crime he was wrongly accused of. Justice Tugendhat ruled that innuendo was equally damaging, carrying the “same effect” as the natural meaning of words.

“To say I'm surprised and disappointed by this is an understatement. However, I will accept the ruling as the end of the matter. I remain sorry for the distress I have caused Lord McAlpine and I repeat my apologies. I have accepted an earlier offer his lawyers made to settle this matter,” Bercow (pictured, below) said, referring to an agreement to make a public apology in court and an undisclosed payment to charity.

She added: “Today's ruling should be seen as a warning to all social media users. Things can be held to be seriously defamatory, even when you do not intend them to be defamatory and do not make any express accusation. On this, I have learned my own lesson the hard way.

Many Twitter users escaped Bercow's fate, as McAlpine decided not to pursue users with less than 500 followers, if they made a £25 donation to Children in Need. It was a generous decision that other victims of defamation may not afford.

Twitter has been a common medium for libel, thanks to its unofficial nature as a news source, but it is not the only social network that has caused defamation controversy. As far back as 2007, there were libel cease-and-desist warnings issued against students using Facebook and MySpace who had made derogatory comments against staff at Keele University in Staffordshire.

Online defamation can also take other forms, as search giant Google has increasingly discovered. It has been sued numerous times over its auto-complete feature, which - while handy for many web surfers - sometimes links people's names with terms they find offensive or misleading.

For example, Google lost a case in mid-May over auto-complete search returning the terms “Scientologist” and “fraud” with a plaintiff's name, similar to another case brought by Betinna Wulff, wife of the German President, over searches linking her name with the words “escort” and “prostitute.” It has been ordered to hand out damages all over the world, in fact, including in Australia - Google paid an Australian man more than £100,000 for inaccurately linking him with an infamous gangster.

More controversially, Google settled a case in France in 2012 over associating the word “Jew” with the names of several celebrities and politicians, an action that broke French anti-discrimination laws.

Google's defence is that it uses an automated search algorithm, which provides auto-complete suggestions based on the most popular terms Internet users search for. This might show it is not intentionally defaming anyone, but the legal cases show that judges are not content with this explanation.

Research conducted by legal publisher Sweet and Maxwell in 2011 showed that online libel cases have doubled thanks to the rise of social media. Growing Internet use and upcoming changes to the law could see that number skyrocket further.

The rise and risk of citizen journalism

The widespread adoption of the Internet and growing popularity of social media and blogging has led to the creation and boom of a new area of news reporting. It goes by many different names: “citizen journalism,” “street journalism,” “guerilla journalism,” “public journalism,” “participatory journalism,” and “grassroots media” are some of the most popular. 

As the various names imply, this form of news coverage puts the reporting power into the hands of the public, who now often offer the first reports about disasters, crime, and local events. It has been hailed as a potential rival to mainstream media, with some advocates touting the time advantage citizen reporters have over conventional journalists, who might take longer to get to the scene of an event.

Twitter has become perhaps the most dominant medium through which citizen journalism operates, thanks to the fact that people can tweet updates instantly, often directly from their mobile phones. In fact, this has become a popular method for covering live events of all kinds, with many major news sites now offering live Twitter feeds.

Blogging, vlogging and podcasting are other equally popular areas where anyone can get up on their soapbox. Some people like to talk about celebrities, and this is where one real danger of libel lies, as rumour and speculation is likely to get repeated and re-blogged.

Citizen journalism is useful in some cases, but it has numerous drawbacks. The most obvious is the fact that objectivity and impartiality is not guaranteed, as journalistic training (including ethical reporting), does not apply. Information may be completely untrue, warped, misinterpreted, misrepresented, or any other variation that leads to poor quality, unreliable, news.

We see examples of this kind of thing all the time on Facebook, where images and “reports” are shared, often citing “facts” that have no basis and no sources. These get shared over and over again, until the old adage comes to mind: “if you repeat a lie often enough it becomes the truth.”

The legal repercussions of citizen journalism are clearly not understood by many proponents of it, because a lot of people still think that social media is like sending an SMS message to a friend, rather than publishing something for the world to see. However, as a number of recent libel cases illustrate, many would-be reporters may be in for a rude awakening.

The law on Internet content and libel

UK law is very clear on libel: anyone who makes a defamatory comment in published material about an identifiable person (i.e. someone named, pictured, or otherwise alluded to) which causes loss to business or reputation has committed libel. Some accusations, such as of crimes, diseases and adultery, do not require the victim to prove damage in order to take the case to court, as damage is largely associated with these issues.

In fact, a person does not even have to make a direct allegation, as the law equally covers insinuation and implication, as discovered by Bercow. This is perhaps the biggest area people need to watch for when commenting about the lives of others on social media.

Another interesting thing about UK libel law is that a defamatory comment is assumed to be false unless it can be proved to be true by the person who made it. This is somewhat of a reversal of the traditional and widely-known criminal law where the burden of proof lies with the accuser.

What many people do not realise, however, is that “published material” does not just mean something in print. As more news goes digital, publishing online increasingly falls under the same category.

In fact, Twitter is often cited as a useful medium to learn about news, since it provides such quick updates, with many journalists (and citizen journalists) employing the service on a daily basis. The trouble for average tweeters is that their posts are subject to as much scrutiny as any other published source.

On the other hand, the problem for those affected by online defamation is the potential for lawsuits to bring more media attention, thereby adding to the damaging effect comments might have already had upon a person's reputation.

This was demonstrated by a survey conducted for German newspaper Bild am Sonntag, which discovered that 81 per cent of Germans had not heard of the rumours about Betinna Wulff before she launched her anti-defamation case against Google

The tricky area of anonymous online comments

When a person defames another from their personal, fully authentic Twitter or Facebook account, the defamed knows who to target with a lawsuit. With Google caches and other methods of finding deleted posts, this is generally not too difficult.

However, there is a significant problem when those making libellous comments are doing so anonymously, as it presents a variety of logistical issues to overcome. The primary one is how to identity and thus prosecute the person behind the comments. Plaintiffs need to seek additional legal aid to unmask anonymous posters. Generally, this will involve going to the home country of an ISP and launching a claim to have that service identify the user.

In 2011, a major ruling in this area occurred. South Tyneside Council brought a case to the Superior Court of California, which ordered Twitter to pass on the name, email address and phone number of the person accused of libelling the council. The case is seen as a precedent for similar lawsuits aimed at identifying culprits of anonymous Internet libel. While applauded by some, it was also criticised by advocates of free speech and online privacy.

Another high-profile case involved Manchester United footballer Ryan Giggs, who got Twitter to reveal the identity of a user who revealed details about a gagging order over an alleged affair with model Imogen Thomas.

Court orders are not always the answer, however. Some people using “sock puppet” accounts go to great lengths to protect their identities. Some even try to muddy the waters by offering some light defamation of themselves to make them look like they are as much a victim as anyone else.

Others go further still, lodging anonymous attacks against themselves that they can accuse the prosecution of orchestrating, thus allowing countersuits, which makes it difficult to decipher the mystery of who is behind the libellous material.

Another problem is when people employ virtual private networks or IP address anonymisers, such as Tor, which can make it extremely difficult, and in some cases impossible, to identify perpetrators of online defamation campaigns.

The Defamation Act 2013: the future of online libel law

In April 2013, the UK Ministry of Justice announced that the Defamation Act 2013, which would overhaul the libel laws of England and Wales, had completed its passage through Parliament and will be brought into force later in the year.

The Act replaces old laws that were considered old-fashioned and unfair. The old approach was also criticised for hindering free speech and media coverage.

The Defamation Act 2013 offers significant protections for members of the press, scientists and academics looking to publish material without fear of prosecution. This includes peer-reviewed journals and material believed to be in the public interest.

The new laws also put more of the onus on those looking to launch libel cases, with a requirement for individuals and companies to show “serious harm” caused by the alleged defamation. Other measures include a prohibition against repeated claims over the same libellous material, and tighter controls on so-called “libel tourism,” where those outside the UK attempt to launch additional claims in more favourable English and Welsh courts.

Finally, the Act will establish a new process designed to help get those who believe they have been libelled and those alleged to have committed libel in direct contact to resolve the issue without the need for it to go to court.

While this legislation provides a boost to free speech and open debate, it does not shield members of the public using social media to offer a running commentary on current events. Bercow and others would likely have still been prosecuted, and thus the same warnings about the danger of reckless tweets apply.

What the law firms have to say

Libel law can be confusing, and it is always wise to seek advice from legal experts on any issue relating to the law. We did just that, gaining clarification on this important area by speaking with Nick Armstrong, Reputation Management Partner at law firm Charles Russell, about the issue of libel and social media.

1. Do libellous comments online carry the same weight as those in print in the eyes of the law?

"Yes. The McAlpine v Bercow judgment (24.5.13) shows that the law treats written material online as subject to the same legal principles as any other published material. In the same way as printed or broadcast material, the nature of the allegation and the number of people who read it will dictate what weight attaches to it in terms of the seriousness of the libel.

"But the McAlpine judgment also shows that the courts will look at issues specific to the online medium in reaching decisions - e.g. the nature and extent of a readership which will have seen a particular tweet, their likely state of knowledge; also the meaning of online 'parlance' - the effect of an 'emoticon' or 'smiley' on what the material meant, for instance.

"Also, the law takes account of the nature of online discussions on blogs and message-boards, reflecting the fact that a 'thread' may be more like a conversation and that individual remarks must be read in the context of the whole in order to ascertain the overall gravity of a libel; and that statements may have a transitory quality - they slip further and further out of view as a discussion develops.

"All these things may affect the weight of a statement made online, as opposed to in a magazine or newspaper."

2. What protections do people have against such infringements?

"Basically, the same remedies are available - Lord McAlpine was able to use the law as he would have done against a newspaper, largely thanks to the face that Sally Bercow tweeted in her own name, and there was no doubt about how to take action against her.

"There can be practical complications in using the law of libel over online defamation if the person making the statement does so anonymously, using a pseudonym. Then it may be necessary to use a court procedure to get an order that the website hand over identification details for the individual. This can take time and money - especially if the website is abroad (Twitter, Facebook, Google/Blogger are all California-based, for example).

"UK-based websites, on the other hand, may respond quickly to a direct complaint because of the way the current law works - they may lose protection given by a defence under the Defamation Act 1996 if they ignore a complaint.

"The new Defamation Act 2013 due to come into force later this year should simplify the law and procedure relating to online libel complaints. It is designed to make it easier for complainants to obtain identification details of those posting material - whether it works, remains to be seen."

3. What protections do social commentators have against being sued?

"The same protections as anyone else commenting in public - the McAlpine case shows that commentators cannot ignore the law of libel just because they are writing online."

4. Is the public educated enough on this topic?

"People perhaps do not realise sufficiently that posting online may get them into just as much trouble as writing something in a newspaper."

5. Do you see lawsuits in this area growing?

"I don't think the McAlpine case will lead to any huge shift. It may make potential complainants more aware that they can do something about a libellous comment online about them; but then again it may make online commentators that bit more careful about what they write.

"The new Defamation Act may lead to more actions, as it is intended to simplify the process of complaining (e.g. of getting hold of posters' ID details) and this may generate more legal activity."

We also spoke with Sarah Birkbeck, partner at law firm Thomas Eggar, who echoed Armstrong's comments:

“There are no special rules for online. A defamatory statement is a defamatory statement whether published online or in a newspaper or made verbally. Online statements have the potential to reach wide audiences and have the potential to cause real damage to reputation. With growing numbers of people using the Internet to express and exchange views, it is no wonder that we're seeing increasing litigation in this arena,” Birkbeck said.

“People don't have special protection online and need to exercise as much caution as they would when committing a statement to paper or making verbal statements. There have already been a number of high profile cases concerning onine libel and there will undoubtedly be more.”

Conclusion

Be careful what you tweet. While you might be able to restrict some posts on social networks to a trusted circle of friends, most posts on Twitter can be seen by all and sundry. Many are retweeted, favourited, catalogued and archived, opening them up for the entire world to see.

As soon as you click that tweet button, you have “published” something. It might not be a book or an article, and those 140 characters might seem like too little a space to say anything that can have a real effect upon the world, but the reality is that bite-sized comments have the power to go very far on the Internet – and cause significant damage.

Rumour and speculation about the reputation of people is best left offline. There is too much at risk, and the average citizen reporter does not have the same training, experience and legal protections as an actual journalist. As your mother always said: “If you don't have anything nice to say, don't say anything at all.” Silence is sometimes the best defence.

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