The effect of speaking ill about someone has been known since time immemorial, whether through religious text references or Shakespeare’s Othello. These effects have become formalized in actionable torts (legal claims) called slander and libel. Whilst a claim for slander has traditionally been used for spoken word, a claim for libel arises where there is a level of permanency in the words complained about, for instance, through email, online groups and social media. This article focuses on defamation through social media and what internet users should be mindful of.
What is Defamation?
Generally, defamation occurs when words are published about an identifiable person, which are likely to cause harm to that person’s reputation in the estimation of the minds of reasonable people of society.
The words published must have a defamatory meaning. The Courts, in ascertaining whether the words complained about are defamatory, would have regard to the natural and ordinary meaning of the words, the context of the publication, and what impression they would likely make on a reasonable reader/viewer.
The defamatory meaning can arise directly, or through innuendo, based on the surrounding circumstances. In the English case of McAlpine v Bercow [2013] EWHC 1342 (QB), the Court had to consider the tweet “Why is [Claimant] trending? *innocent face*” to ascertain whether the tweet constituted defamation through innuendo, or its natural and ordinary meaning. This distinction matters because damages awarded to a claimant tend to be lower for innuendo.
This tweet followed a recent news report which revealed serious allegations of child abuse by ‘a leading Conservative politician from the Thatcher years’ against a victim. As the politician was not identified in the news report, there was widespread speculation as to who the politician was. The Claimant, who had retired from politics over 20 years before, denied any involvement in the child abuse. The tweet was posted by Sally Bercow, the wife of the Speaker of the House of Commons. The Court found that her 56,000 twitter followers would mostly be persons who were interested in politics and would know about the news report. Some would also have known who the Claimant was. The Court decided that “innocent face” would be perceived by a reasonable reader to be insincere and ironical as there was no need to include those words, if the Defendant was really seeking a credible response to a factual question. Additionally, the news report, which was not just an investigation but also an accusation of criminal offence, was connected to the tweet given the recent context, but now with the addition of a name. As such, the tweet was considered akin to the Defendant having made the accusation herself with the name and therefore, was intended to show that the Claimant was a paedophile in its natural and ordinary meaning.
Accordingly, it is important to understand who your followers on social media may be since the words you publish (whether through Twitter, Facebook or otherwise), depending on your privacy settings would first be seen by your direct followers. Generally, these followers would be the members constituting the readership in which a Court would first extract the reasonable reader, for the words complained about. If they would have understood a post to be referring to a particular person, even though the wider public would not, this could be enough to establish defamation.
Our local jurisprudence also has cases of defamation through social media. For example, in Joseph v Charles CV 2016-02996, the Court had to consider whether the following post published on a private Facebook account, was defamatory to the Claimant who was a prisons officer, especially as they also appeared on the Trinidad and Tobago’s Prison Service Facebook page:
“Trying to get on to [Claimant] she left her kids in the road at my home and I am unable to contact her. Anyone with information or who can relay the message please assist asap?? Beyond the Tape Ian Alleyne The TV6 News.”
The Claimant claimed that the words as published in their natural and ordinary meaning meant that she left her children unattended on a road and was an incompetent and irresponsible mother and unfit to be a member of Trinidad and Tobago Prison Service.
Though the Defendant had privacy settings for a limited audience and despite her stated intention of merely circulating the information, the Court found that tags added (The TV6 News, Ian Alleyne, and Beyond the Tape) implicitly permitted the administrators of those pages to forward the post to third parties. Therefore, it was “highly probably that one of the persons whom the Defendant permitted to view the post in her Facebook page caused it to be on the TTPS Facebook page.” These tags, in the Court’s opinion were the sting of the words as they would have led the ordinary and reasonable reader to believe that the Claimant’s treatment of her children was grave and that it was a criminal act committed. As long as the words remained in their original form when posted on the TTPS’ page, the Defendant bore responsibility.
To Post, or not to Post
There are some differences between UK’s law on defamation and the law in T&T, due to the intervention of statute in the UK. Nonetheless, the principles from UK case law at some level are the same and are applicable. It is important that all online users be wary of posting, sharing or re-tweeting posts created by others which may contain defamatory material. A general mindful approach may be to avoid sharing what may be contentious or “bacchanal” posts. Additionally, for Twitter users, retweets could be construed as endorsements and may also be seen as additional publications so as to render the “retweeters” liable.
In the context of publishing posts on any social media platform and in order to avoid potentially being sued, it may be prudent to pause before posting and to ask:
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- Are my thoughts really necessary to be communicated this instant so as to be in a permanent form? (Deleting a post does not mean it was not seen or is not visible in a follower or friend’s feed which has not yet been updated).
- Can someone identify whom I am posting about if I don’t name the person? (If yes, and the post is contentious, then it’s probably better to not post it).
Disclaimer: This Document Provides General Guidance Only And Nothing In This Document Constitutes Legal Advice. Should You Require Specific Assistance, Please Contact Your Attorney-At-Law.
This Article was authored by Mukta Balroop. For more information or queries, please contact mhs@trinidadlaw.com.
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