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Social media, libel and you

Until a few years ago, the people who needed to worry most about libel proceedings were journalists and writers.

But as the recent case concerning the BBC2 Newsnight programme demonstrates, others could now face court proceedings for having posted comments on Twitter, or other social media sites.

While the majority of fleet managers and drivers don’t seem to be likely targets for libel proceedings, the fact is that many of us use social media such as Twitter, Facebook and LinkedIn, where comments can be read by a worldwide audience. Britain has some of the most draconian libel laws in the world. They are currently undergoing reform, with the Defamation Bill having passed its third reading in the House of Commons in September, but it is not yet clear how much difference this will make to users of social media sites.

This feature is not a comprehensive guide to the law, but we will try to explain why anyone using social media needs to be cautious about comments they post.

Our libel laws were drafted long before electronic communications were even possible and were designed to allow individuals to defend their reputation. So from the start, libel has been concerned with defending the rights of individuals who believe their reputation has been damaged, not protecting the rights of individuals who wish to write stories which they believe could be helpful to others.

Clearly it would be wrong if anyone could write anything they liked about anyone else, without consideration for the harm that this may cause. Our libel laws cover many areas, which most people do not realise. For something to be considered published, for instance, it need only be a letter written to one person from another. So a letter containing material about someone else that results in damage to their reputation could be considered libellous.

With publishing defined in such a simple way for libel purposes, it is hardly surprising that text messages, email, Twitter messages, material posted on blogs and websites, on Facebook, or LinkedIn could all fall within the scope of the legislation. The law even covers drawings. Electronic communication means that something you sent to someone else, intended for their eyes only could, at the touch of a button or click of a mouse, be sent to someone else, or posted on a website, where it could be viewed by millions of people.

It makes no difference if the defamatory comment was written by someone else either. If you choose to quote it, or retweet it, in the eyes of the law you are perpetuating the libel and may be just as liable to legal proceedings as the originator of the comment. If an individual can be identified from the comment, they don’t need to be named in it for it to be considered libellous.

Historically, claimants seeking libel damages can pursue the author, editor, publisher, distributor or seller of the publication. Where social media is concerned this could mean the originator of the comment, those who have repeated it, the owners of the website or blog that has permitted it and Internet service providers. This may change under the proposed new legislation, but if so, greater emphasis could be placed on the originator of the material.

There are defences in libel law, known as Justification, Fair Comment, Absolute Privilege, Qualified Privilege and The Reynolds Defence. Justification is simply a question of whether the material was factual, but the supporting evidence must be beyond dispute. For a defence of Fair Comment, the writer must show that the opinion was based on fact and made without malice or disregard for the truth.

Absolute Privilege covers comments made by MPs and members of the House of Lords in Parliament and those speaking in a court of law. Qualified Privilege covers comments made in circumstances such as employment references, confessions to a priest, or bank enquiries. The Reynolds Defence relates specifically to journalism and we shall not concern ourselves with it here.

None of these defences are easy to make, because libel laws have developed differently from other areas of the law, which makes it difficult for lawyers to predict the outcome of a case. Few cases reach court these days because of the high costs involved – usually far more in costs and legal fees than in damages.

In short, think before you Tweet, retweet or post online.

A comment could be libellous even if:

• It was made on a social media site such as Twitter, Facebook, LinkedIn, or on a blog, in a text or email.

• You retweet or quote it, even though you did not originally write it.

• It is true, but that cannot be proved beyond doubt.

• It does not name an individual, but they could be identified from it.

• It is in the form of a drawing.