Defamation or Opinion – Social media blurs the lines

Over 66% of the UK now use social media which has led to a huge rise in online reviews and a new wave of ‘keyboard warriors’. However, a recent ruling has highlighted that leaving negative remarks on social media could land you in hot water for defamation, even if you didn’t actually write it!​

WHAT IS DEFAMATION

​Defamation is the action of damaging the good reputation of someone. Section 1 of the Defamation Act 2013 (the “Act”) sets out the definition of defamation:

Serious harm

(1) A statement is not defamatory unless its publication has caused or is likely to cause serious harm to the reputation of the claimant.

(2) For the purposes of this section, harm to the reputation of a body that trades for profit is not “serious harm” unless it has caused or is likely to cause the body serious financial loss.

Defamation comes in the forms of libel (which is defamation in the written form) and slander (which is defamation through words expressed orally).

Slander cases are far harder to prove because they require convincing witness evidence as to the precise words spoken, and the party accused will often deny that they used the words complained of.

However, despite the definition, there is a very fine line between defamation and opinion. The Human Rights Act 1998 bestows on any individual freedom of speech so, for example, an individual or corporation cannot be prevented from writing a review or making a comment about a service they have received. Nonetheless, should any of these comments be untrue, that is when the line from opinion to defamation may be crossed. 

DEFAMATION BY A THIRD PARTY 

Defamation is not limited to what an individual or corporation has personally written or said.Should a third party repeat or even re-post an untruthful comment, for example one made on social media by someone else, that is enough to bring an action even though the third party were not the ones who actually wrote it.

In the recent ruling, of Zahir Monir v Steve Wood [2018] EWHC 3525 (QB), Mr Wood was fined £40,000 for a Twitter comment, which he didn’t even write or approve; the writer was merely acting as an agent for Mr Wood. It was held that although Mr Wood did not write the comments, he did not remove them when Mr Monir brought them to his attention by way of formal complaint. Therefore Mr Wood’s lack of action justified the decision that the comments fell within Section 1 of the Act, which in turn justified a high fine.

This case is a perfect example of the fine line between defamation and opinion. The comment made against Mr Monir was as follows

“Sarah Champion, Labour candidate for Rotherham stood with 2 suspended child grooming taxi drivers DO NOT VOTE LABOUR“

Mr Monir was one of the men in the photograph. The statement made was untrue which after publication “could cause or is likely to have caused serious harm” to Mr Monir’s reputation. The Judge therefore granted Mr Monir substantial damages stating to the High Court: “It needs to be stated clearly – Mr Monir is completely innocent.”

HOW TO MAKE A DEFAMATION CLAIM? ​

Defamation cases in general are very difficult and costly to litigate. A potential claimant needs to establish that the comments made are in fact false and untrue, and have or will cause harm to the individual or business.

Written comments are more easily dealt with as the potential claimant can write directly to companies such as Face book, Twitter, Trust Pilot and Google who have procedures in place to remove the comments and contact the offending party. If the comments are not removed further redress includes making an application for an injunction for the comments to be removed by way of court order which damages can be sought. This would be the last resort as it is likely to be costly, and the burden of proof lies with the claimant to prove that the comments made were false statements which fall within section 1 of the Act.

MORE INFORMATION​

If you or your business is the victim of defamation, or any other damage to reputation, it is essential that you act quickly to get the offending material removed and recover your reputation. Our Dispute Resolution Team have significant experience in advising on postings on social media and other online platforms and our expert legal advice will minimise any damage. Contact a member of our Dispute Resolution Team​ for more information today. 

This article was written by Maria Orfanidou, Solicitor at Pinney Talfourd LLP Solicitors. The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. Specific legal advice should be taken on each individual matter. This article is based on the law as of January 2019.