Defamation and Social Media
Claims arising from the publication of defamatory material online and via social media contributed to an increase in the number of reported defamation cases in 2013/2014 according to recent research published by Thomson Reuters. It suggests that cases relating to social media, text messages and online forums more than quadrupled.
The Defamation Act 2013
Individuals posting material online that could be potentially defamatory may not be aware that they could be personally liable.
The Defamation Act 2013 brought significant changes in dealing with defamatory online posts and introduced a mechanism for dealing with comments posted by users of blogs and social networking sites such as Facebook, Twitter and Instagram.
Under the new regime, a website operator will not be liable for defamatory comments posted on its website, provided they comply with certain requirements.
Critically, this shifts the control away from the website operator and back to the complainant.
‘Serious harm’ threshold
However the recent increase in the number of claims may not be a sign of things to come.
In particular, the Act also introduced a new ‘serious harm’ threshold which claimants looking to bring 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 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 companies seeking to issue a claim for defamation, section 1(2) states that "harm to the reputation of a body that trades for profit is not "serious harm" unless it has caused or is likely to cause the body serious financial loss."
Whilst this is likely to mean it will now be more difficult for companies to bring libel actions, it remains to be seen how the courts will interpret what constitutes ‘serious financial loss’ and the issue will be fact specific.