How 140 Characters Could End You Up In Court
- AuthorEllie Foxton
Practically everyone uses social media these days. Social networking sites such as Facebook, Twitter and Instagram have many positives and using them is an easy way to interact and communicate with friends and colleagues. However, it is also really easy to forget that we are potentially sharing our thoughts and views not just with our friends but with the whole world.
Even if your accounts are set to ‘private’ there is always a risk that things you share or retweet can be seen by a much wider audience. You can’t fully control how others copy or share your posts or tweets. If you share anything that could be seen to be ‘defamatory’, meaning that it could damage someone else’s reputation, you can land yourself in a sticky situation legally. It has been documented that claims arising from the publication of defamatory material online via social media have increased substantially in recent years.
You may not be aware that posting material online, such as in a tweet or Facebook post, which could be classed as defamatory, could leave you personally liable for damages for defamation. An online comment is potentially libellous in England and Wales if it damages someone’s reputation in the estimation of “right-thinking members of society”. The tweet/posts can do this by exposing a person to hatred, ridicule or contempt.
McAlpine v Bercow Example
You may even be liable if you do not directly name a person in a defamatory statement but they can be identified from what you have said or if your post is not a clear statement, but your intended meaning can be drawn from it. For example, in the case of McAlpine v Bercow  it was found that Mrs Bercow’s tweet had a defamatory meaning. In this case, the Court had only 7 words to consider, two of which were described as a ‘descriptive emoticon’.
Mrs Bercow Tweeted; “Why Is Lord McAlpine Trending? *Innocent Face*”
Prior to the tweet, there had been a BBC Newsnight story which sparked speculation over the identity of an unnamed senior Conservative politician accused of child abuse on the programme. It was also considered that Mrs Bercow’s followers would have similar political interests and would have been aware the Lord McAlpine was a senior Conservative politician and advisor to Margaret Thatcher. The Judge in this case held that it was not necessary for the reader of the Tweet to have any prior knowledge of the Claimant in order to link the Tweet to the Newsnight report.
Despite what the Tweet said, the Court stated that in the circumstances that Lord McAlpine was not otherwise in the public eye at that time, a reasonable reader of the tweet would understand the emoticon of an innocent face to be insincere and ironic and that Mrs Bercow was not sincerely asking the question or looking for an answer to what she had tweeted. It was therefore held that it was reasonable for the reader to infer that Lord McAlpine’s name was trending because he fitted the description of the unnamed abuser.
The Judge stated:
“I find that the tweet meant, in its natural and ordinary defamatory meaning, that the Claimant was a paedophile who was guilty of sexually abusing boys living in care.”
It is interesting to note that the Judge could well have found the words in the tweet to have a lesser meaning and that Mrs Bercow had reasonable grounds to suspect guilt, but instead, he came down firmly on the meaning the *innocent face* emoticon.
So now, not only is it important to consider the words we write online, but also the risk of using emoticons which demonstrate the state of mind or intention behind a tweet or post.
It is reported that Mrs Bercow’s total bill for her 7 word tweet exceeded £100,000 which means that each word cost her at least £14,286.00! This is on top of the negotiated settlement for damages in the sum of £15,000 which was payable to Lord McAlpine.
Defamation Act 2013
The Defamation Act 2013 introduces a ‘serious harm’ threshold which Claimants considering bringing a defamation action need to overcome. They must show that a statement has caused, or is likely to cause, serious harm to their reputation. The aim of this is to avoid claims being brought which are trivial in nature and which do not truly impact upon a Claimant’s reputation. In terms of serious harm to a company, it must show that the defamatory statement has caused or is likely to cause serious financial loss.
The above case is a rather extreme one and, given the thresholds introduced by the 2013 Act above, it is more difficult to successfully bring a claim for defamation. However, to err on the side of caution, think before you post!
Tweeters be warned…