Lies, damn lies and fake news: defamation on social media

4 October, 2018

Social media has made a huge impact on our day to day lives with many people now checking their phone before, during and after most of their daily activities. Social media, and particularly Facebook, was created to strengthen or rejuvenate the relationships that we have built during our lives. Unfortunately, the norm does not always match up to the ideal and social media has also given individuals a platform to publicly express anger or resentment.

It is often in the circumstances of a relationship breakdown that these issues come to the fore, with ex-partners and spouses posting offensive and upsetting content on social media, for the world to see, causing distress and humiliation.     

In the second quarter of 2018, Facebook reported 2.23 billion monthly active users, Instagram 1 billion and Twitter 335 million. With over a quarter of the world’s population actively engaging in social media every month, it is no surprise that legislators across the world have sought to identify likely causes of action and suitable remedies to protect or prevent individuals from suffering abuse, harassment or reputational damage.

The good news is that there are ways of regulating offensive and damaging content online. The first step is usually the use of the social media platform’s own reporting functions; whereby you can generally report “nudity”, “violence” “inappropriate” or “other” posts. If the platform considers that the post in question violates its standards it will be removed. Sometimes this process can be unsatisfactory, particularly as the post can be seen by followers immediately and can quickly spread. We are therefore seeing an increase in the amount of individuals seeking a legal remedy in the form of defamation of privacy law.

Defamation is an umbrella term for the legal actions known as libel and slander. To bring an action for either, a defamatory statement must have been made or published and that must have adversely affected the concerned individual’s reputation. Libel concerns “lasting” forms of publication such as that which has been printed or broadcast whereas slander concerns spoken words or gestures.

A recent decision in the Court of Appeal (Stocker v Stocker) saw an ex-husband bring a libel claim against his ex-wife for a post that she had made on his new partner’s Facebook wall, referring to a past incident of violence. Following an appeal from the High Court, the Court of Appeal found that the post was defamatory and awarded in the ex-husband’s favour. The court found that the ex-wife was aware that a Facebook wall was semi-public i.e. visible to all of the new partner’s friends and therefore it followed that she should be liable for the defamatory comments made.

It is not always necessary for a case to proceed to court and reported cases like this are still rare. Indeed the law requires an individual to first send a letter of claim before a court application can be made. This letter must include a comprehensive account of the individual’s claim together with a demand for the remedies sought. These can include:

  • A takedown and retraction;
  • An enforceable promise not to repeat the same or similar comments;
  • Payment of compensation; and
  • An apology.

Depending on the respondent’s reaction to the letter, there is every chance that this will conclude the matter and provide a satisfactory resolution for the affected party. If this does not provide the desired outcome, then a solicitor will be able to provide advice on whether your claim is likely to have any merit if your case proceeded to court.

So, if you are suffering from online harassment, defamation or an embarrassing disclosure, our top tips are –

  1. Act quickly and decisively. Your case may be weakened if you delay;
  2. Gather and secure your evidence. Take screenshots of offending material and keep as much detail as possible, including the date, time and location of posts on social media or websites.
  3. Take good legal advice. At Cripps Pemberton Greenish we offer fixed fees for most of our services relating to problems online.