Let’s face it, any man and his dog can have a voice in the age of the internet. Armed with a keyboard and a twitter account, the opinions of individuals are broadcast all over the world. In decades gone by to have such reach you’d need to arm yourself with a shed-load of paper, a printing press and a physical distribution network. So now that anybody can just about say anything, what happens when somebody says something about you that you don’t like?
If you spend any amount of time on social media, you may well have seen the numerous defamation lawsuits that have graced the headlines of tabloids recently. One such example being where the Drag Race UK star Crystal sued Laurence Fox after he called them a “paedophile”.
Celebrities have used the weapon of defamation in courts for many years but what is the law and what about us normal folk?
According to the European Court of Human Rights (ECHR) Article 10(2), defamation is one of the accepted reasons for placing a limit on a person’s freedom of expression, meaning that there is not a blanket ‘anybody can say anything’ rule.
There is currently no statutory definition of defamation in the UK, but there’s plenty of case law (i.e. decisions from judges)! Starting with the basics, it is important to note that defamation is split into two categories: libel and slander.
Slander is the defamation of a person through a non-permanent form of communication, such as speech. Anything that was said orally which would harm someone’s reputation will be considered slander. The ovvious example is if you heard somebody say something untrue about another person in a conversation, for example that they are a criminal mastermind drug lord, which could travel by word-of-mouth and have serious consequences.
Using Instagram live videos, which are types of “posts” that are not capable of being viewed at all times, to make harmful types of statements towards one’s image can be a modern day example of slander.
Eric Trump, Donald Trump’s son, called out Hunter Biden, President Joe Biden’s son, for embezzlement at a rally in 2019. He said “Right after embezzling a lot of money, taking a lot of money, the crookedness. He’s not looking too good. Maybe lock her up goes to lock him up,” which clearly appears to comes off as him trying to claim that Hunter Biden was involved in illegal activities. This would be a perfect example of slander. He spoke words which he knew would have damaging effects on the president’s son, in front of hundreds of people.
Libel, on the other hand, is defamation of a person through a permanent form of communication, such as written word. An Instagram post or a tweet calling someone a defamatory thing, such as being a racist, misogynist or other types of things that will cause a social lashback will constitute libel.
To give an example, we can talk about the many tweets that were directed towards Peter Dutton this year, claiming that he is a “rape apologist” after he labelled the Brittany Higgins rape allegations as a “he said, she said” situation. Dutton claimed that he would issue defamation lawsuits to those that tweeted in such a manner.
The two categories have different burdens of proof, which is a fancy way of saying there are different thresholds of evidence requried to bring about a claim. For slander you must prove the damaging effects, whereas there is no such requirement for libel.
Most importantly, any statements must be shown to damage the person/bussines’s reputation.
If it is about an individual: the statement needs to be about the characteristics of the person.
If the subject is a business: then the statement must cause, or be likely to cause it serious loss.
In some cases, the damage will be assumed and there will be no need to prove it. Such instances include an accusation of committing and imprisonable crime, claiming someone has a contagious disease (critical considering the time we’re in!), and being incapable in their office, profession or business. The previously mentioned case of Laurence Fox calling Crystal a paedophile is a perfect example, as being a paedophile and having acted on it is an imprisonable crime, and could cause the Drag Race star to experience serious consequences both legally and personally if not challenged in court.
In a nutshell, for there to be a defamation claim, the published or spoken statement must not be simply a statement of opinion, as sections 2 and 3 of the Defamation Act 2013 exclude truth and honest opinion: It must be presented as if a fact, and should contain falsehood. For the claim to be successful, the statement must be:
We mostly see defamation claims under libel, as it is harder to prove that anybody did say something in conversation/spoken word (slander).
We mostly see public figures claiming defamation against the media. The claim becomes more challenging for public figures, however, as they also have to prove malicious intent alongside falsehood in order to have a claim. Some of the most famous examples are the cases claimed by Johnny Depp and Meghan Markle against the media.
Johnny Depp famously filed a defamation lawsuit against The Sun, on the account of them publishing his ex-wife Amber Heard’s claim that he was a “wifebeater”, having argued that he hit her repeatedly throughout the duration of their relationship. The argument had been made publicly and in court, and caused there to be a (expected) backlash towards the actor. He sued for libel, as tabloids had published the story of the claim in a permanent manner both in print and online. He eventually lost the case to The Sun, as the court found that the claims were “substantially true”.
What constitutes defamation must be taken down from the platform, and damages are available to victims. All platforms will have their own terms and conditions concerning their responsibility regarding the defamatory content published on their platform.
Instagram, for example, will only take your content down, whereas others might ban you from the platform for a significant amount of time until the issue is resolved legally, as done by YouTube.
If you decide to sue the person, or the organisation, who has posted defamatory content about your person, the court will use the legal framework to calculate the financial and emotional damage that you have suffered as a result. These damages are divided into two:
The former category of damages are related to the direct financial loss that you may have suffered as a result from the reputational damage you have suffered. This can be calculated to the GBP, and constitutes lost earnings, any future losses and other business/economic opportunities that you may have lost as a result.
The latter category is related to the pain and suffering that comes about as a result of the defamatory claims and its impact on your mental health and reputation. This category is quite personal and varies from case to case. This is why a good argument goes a long way!
Typically, in order for someone who has posted a defamatory statement in a publication to be sued, they must have been part of the publication. Those who can be responsible include authors, editors, or commercial publishers of the communication, according to the Defamation Act 2015 and the decision of Campbell v Dugdale .
It is quite straightforward therefore to sue commercial publications, however the issue becomes more complex when it comes to social media and internet platforms.
Do we know the real identity of the individual who posted the defamatory statement? Should we sue the writer or the social media platform responsible for publishing/promoting the content?
While usually an internet service provider (the people who run your internet connection) are not considered as publishers of the material, they can be accused when they are made aware of defamatory material and they fail to remove it within a reasonable time period.
Under UK law, operators of websites have a defence if they cannot identify the person who posted the defamatory statement. It is also much harder to claim defamation if the engagement on the internet post is low, and the false statement would not have affected the person’s reputation much if it has not been seen by enough people. There is no uniform decision on how much engagement is sufficient, though.
Another defence that is useful on social media is that, for electronic statements, the people who share or like someone else’s words are not responsible, as long as their engagement does not materially increase the harm caused. The Defamation Act 2015 also excludes the owners of the platforms on which the message is distributed, such as Twitter, Facebook, or Instagram, from liability in certain circumstances.
But would a high-profile figure re-tweeting a potentially damaging statement to their fanbase increase the harm caused? Very possibly!
It’s a complex part of the legal world which is constantly evolving as new platforms arise and cases make their way through the courts.
With thanks to Aybike Ceren Kahveci for her help with this post
Each week we summarise the most important issues that affect your rights at work, home, in the shops etc.
You'll basically be a lawyer from our newsletter alone...