Social media has revolutionised the way in which we communicate with each other – but it can also be a fertile breeding ground for defamation. Ursula Van Hezel, Reputational Management solicitor, describes what steps can be taken when someone has been defamed online.
Defamation is a tort that lowers an individual in the estimation of right-thinking members of society generally (Sim v Stretch [1936] All ER at 1240 – Lord Atkin)
Once a statement is identified as being defamatory it can then be categorised as either libel, which is a defamatory statement in permanent form, or slander, which covers impermanent forms of defamation.
Traditional print and broadcast media are created by journalists and subject to fact-checking and legal review. The content is then published to a limited number of publications and readership is limited by volume of circulation for traditional print.
In respect of broadcast media, defamatory words spoken during a live broadcast are treated as libel because they are in permanent form (S166 (1) of the Broadcasting Act 1990).
Given that internet and social media posts are often self-published, they lack the quality control afforded to traditional print and broadcast media and do not tend to be subjected to the usual restraints of fact-checking and legal review.
The first step to handling defamatory content online is to determine whether the content is defamatory. Section 1 of the Defamation Act 2013 (“DA 13”) provides that a “statement is not defamatory unless its publication has caused, or is likely to cause serious harm to the reputation of the Claimant”. This has been interpreted to mean that on the balance of probabilities, serious reputational harm had been caused, or likely to be caused by, by the publication. The courts will look at all relevant circumstances both pre and post publication, therefore proof of damage to the reputation is essential (Lachaux v Independent Print Ltd [2015] EWCH 2242 (QB), affirmed by the Supreme Court, see Lachaux v Independent Print Ltd [2019] UKSC 27). Should a company or a trading body be the victim of defamatory content it must show serious financial loss (section 1 (2) of DA 13).
Examples of defamatory statements may include, but are not limited to allegations of dishonesty, incompetence, illegal conduct, financial or martial difficulties.
Once it has been established that the content is defamatory, the internet site or the social media platform guidelines should be reviewed as sites have terms and conditions that will set out the steps to be taken to report content that breaks the law.
An individual aggrieved by defamatory content online is able to report the content via the internet site or social media site’s self-reporting channels.
Liability for defamatory content posted on social media and online is not restricted to the author of the defamatory content. Liability can extend to an internet service provider, the website operator, or an employer.
A website operator can be protected by a S5 of the DA 2013 defence, given they are not editors, authors, or commercial publishers. This defence is unavailable if the poster of the defamatory statement cannot be identified, and the website operator has not abided by its compliant procedure as identified in Defamation (Operators of Websites) Regulation 2013.
Should reporting the defamatory content via the site’s self-reporting channels not be effective, the next step is to prepare a takedown notice which is to be served on the website operator.
Finally, website operators usually require users to register with them and provide certain details during the registration process, such as a name, address, and email address.
Should a prospective claimant need to obtain the details of an individual behind an online assumed name and identify who is behind the anonymous defamatory content, a prospective claimant in England and Wales is able to issue a Norwich Pharmacal Order (NPO) to seek the appropriate relief.
The criteria which need to be satisfied to ensure the court will grant such relief are that there must first be wrongdoing against the individual seeking the relief, and the NPO must be needed to enable action to be brought against the wrongdoer.
Lastly, the individual against whom the NPO order is sought must have someway been involved in the wrongdoing, although innocently, and is able to provide the necessary information subject to a court order, to enable the ultimate wrongdoer to be identified. The Court will only grant the NPO if it is proportionate to do so in all the circumstances.
This is a useful step should a prospective claimant wish to then proceed to bring a claim through the courts for defamation as it enables the ultimate offender to be identified. Consideration ought to be given to the costs consequence before embarking on such a route. Save for exceptional circumstances, the applicant will not only be liable for their own costs of the application but is likely to also be required to pay the costs incurred by the respondent in complying with the order and the respondent’s legal costs. Its worth noting that these costs may ultimately be recoverable in a claim against the primary wrongdoer.
For further information contact Ursula on 020 7467 5750 or u.vanhezel@rfblegal.co.uk
