27 Oct DEFAMATION IN THE DIGITAL AGE
By Catherine Ramnarine
Social media and messaging platforms have revolutionized communication in the digital age, making it possible for the average person to reach a much wider audience than was previously possible. The ease of communicating through these platforms can, in some cases, encourage users to post things about others that they might not say in person or on a more formal platform. This can have serious consequences, both for person making the post and for the person that they are posting about, as illustrated in the recent High Court case of CV2020-00493 MS v CH.
The Claimant and Defendant were both members of the Trinidad and Tobago Police Service (‘TTPS’) and participants in a ‘WhatsApp’ group chat. The group chat had more than 211 participants, many of whom were members of the TTPS.
The Defendant replied to a message posted by the Claimant in the group chat with the following:
“…you cant talk about me you aint ready you [expletive] to work in the task force i does work i could solve crime… You getting personal. Study because ah two police in longdenville you get away from case with yuh big bandit man.”
The Claimant contended that this message was defamatory in that it suggested that she (a) rendered sexual favours to obtain her position (b) was a criminal and narrowly avoided prosecution and (c) was involved in criminal activity with her significant other. She claimed that the message caused significant harm to her reputation and that she suffered considerable distress and embarrassment.
The Law of Defamation:
One of the issues that the Court had to determine was whether a message posted on WhatsApp could ground a claim for defamation.
Generally speaking, 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 in society. ‘Slander’ is a defamatory statement that is oral, while ‘Libel’ is a defamatory statement that is written.
A claimant in a defamation suit is required to prove three things in order to obtain judgment and an award of damages:
- That the impugned words were defamatory, in the sense that they would tend to lower the claimant’s reputation in the eyes of a reasonable person;
- That the words in fact referred to the claimant; and
- That the words were ‘published’.
Members of the public sometimes have the misperception that defamatory words need to be ‘published’ in book or newspaper or to a wide audience in order for them to be actionable. However, this is not true. ‘Publication’ in the context of the law of defamation has a very specific meaning. It means only that the defamatory information was communicated in such a way that it was ‘made known to a third party’. Publication has two components (a) an act that makes the defamatory information available to a third party in a comprehensible form and (b) the receipt of the information by a third party in such a way that it is understood. The nature and extent of the audience to which the words were published may impact the amount of damages that a claimant is awarded, but does not determine whether or not they are actionable.
It is also important to note that a person who repeats or ‘republishes’ defamatory information is generally subject to the same liability as if they had originally created or published the defamatory statement. The fact that they merely repeated someone else’s words is no defence to liability.
In the earlier case of CV2016-02974 DRA and SA and another v Jenelle Burke, the High Court had held that messages posted on Facebook could ground claims for defamation. It adopted a similar approach in the MS v CH case, finding that messages posted on WhatsApp could also ground legal claims for defamation.
The Claimant, having established the other requirements needed to make out a case in defamation, was successful in her claim. The Defendant was ordered to pay her $75,000.00 in damages, in addition to her legal costs.
The Court noted that, while persons might feel that there was a measure of security and privacy when using WhatsApp, this was misguided. Messages sent via WhatsApp were also fairly easy to track, as accounts were tied to mobile numbers which were visible and traceable. It also cautioned that forwarding defamatory messages could also amount to ‘republication’ under the law of defamation, exposing persons who did so to potential liability.
Legal defences to defamation are available and it is not every ‘shady’ post or comment that will ground a legal claim for defamation. However, the simple rule is – as eloquently put by the Court in the MS v CH case – do not post or forward a message about another person unless you would be prepared to defend the contents of that message in Court.
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.