This is an academic article, and not to be construed as legal advice or opinion in any way. If you have a specific concern, you are advised to seek the help of a practising solicitor.

 

 

You can be even sued on Twitter for Libel. The recent experience of Lord McAlpine is a testament to this:

That you can end up in Court through Twitter is known to followers of the “Twitter Joke Trial”, successfully fought by David Allen Green (Preiskel & Co.), John Cooper QC (25 Bedford Row), and Sarah Przybylska (2 Hare Court) in the presence of Lord Chief Justice Lord Judge. This example is cited here only to illustrate how anxiety-provoking litigation can surround Twitter. The case itself was not about libel – it was about allegations of “menacing behaviour”, as per s. 127(1) of the Communications Act 2003.

The public has a right to criticise the people who govern them, so the least protection from defamation is given to public officials. Other people, with the resources, can of course sue you, but they have to prove that defamatory statements were made with actual malice, in most cases.

This excellent guide for Twitter users, regarding libel, has been published recently on the BBC website. Using the social media has become a ‘risk factor’ for attracting a claim in defamation, for the unwary, in the same way a cabbie may be, in theory, more likely to produce a driving offence simply by nature of the fact she or she is doing a lot of driving. This for example comes from the MoJ’s own guidance to the draft Defamation Bill:

Sim v Stretch [1936] 2 All ER 1237 provides the classic common law definition in English law:

  “A statement which tends to lower the claimant in the estimation of right thinking members of society generally, and in particular to cause him to be regarded with feelings of hatred, contempt, ridicule, fear and disesteem”. (Lord Atkin)

Article 10(1) ECHR states:

“Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”

But Article 10(2) ECHR states that:

“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary”.

“Defamation” is a catch-all term for any statement that hurts someone’s reputation. Written defamation is called “libel,” and spoken defamation is called “slander.” Defamation is not a crime, but it is a “tort” (a civil wrong, rather than a criminal wrong). A person who has been defamed can sue the person who did the defaming.

Defamation law tries to balance competing interests in keeping with the very important legal doctrine of proportionality: on the one hand, people should not ruin others’ lives by telling lies about them; but on the other hand, people should be able to speak freely without fear of litigation over every insult, disagreement, or mistake. Political and social disagreement is important in a free society, and we obviously do not all share the same opinions or beliefs. For example, I do not believe in important European and US competition and procurement laws voluntarily in governing the decisions of commissioning groups in the NHS unless we have to, and I am entitled to my opinion within reason.

The rule of the Jury is to establish the standard of ‘right-thinking members of society’, and to decide whether the claimant was defamed.

What the victim must prove to establish that defamation occurred

The law of defamation varies from state to state, but there are some generally accepted rules. If you believe you are have been “defamed,” to prove it you usually have to show there’s been a statement that is all of the following:

• statement
• published
• false
• injurious
• unprivileged

This is a MUST READ guide to defamation on Twitter by Dr Paul Bernal, who is a young leading academic in this area and Lecturer in IT, IP and Media Law at UEA.

Whilst this article has focused on Twitter, the general principles of defamation apply to all media, including blogs.

 

 

Thanks to Dr Paul Bernal for a helpful suggestion about an earlier draft of this blogpost.