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Be careful how you Tweet. It could land you in Court

PUBLISHED: 10:11 20 January 2014 | UPDATED: 10:11 20 January 2014

Chris Lennon

Chris Lennon

NA

One of the problems associated with riding the wave of a new technology is that pushing the boundaries means risk.

Last October, England cricketer Kevin Pietersen accepted substantial undisclosed libel damages regarding a Specsavers advertisement, posted on Twitter, which implied that he may have tampered with his bat during the Ashes. Specsavers Optical Group Ltd accepted that Pietersen did not behave in the manner suggested, apologised, removed the advertisement from circulation and made a substantial settlement. Such a consequence could hardly have been imagined when Specsavers’ marketing team conceived the tweet.

Helen Smith, Senior Solicitor and John Bennett, Partner at UK professional indemnity firm DWF Fishburns and Helen Otty, Associate of DWF LLP highlight the issues.

“Social media marketing helps businesses increase brand awareness and monitor customer service, and social media outlets such as Twitter, Facebook, YouTube, LinkedIn and website blogs provide businesses with many opportunities; however, everyone should be as careful of what is published on social media as they would with any other published material.”

In October 2012, The Court of Appeal said that a Twitter message can “go viral more widely and quickly than ever before”. So to what extent can a statement made on Twitter, or on any other social media outlet or otherwise be regarded as libellous?

First, the statement has to be defamatory, i.e. a false statement which tends to lower a person in the estimation of right thinking members of society. Secondly, the statement must be published to a third person other than the Claimant. In the context of social media, publication can be by electronic means - through a posting on Twitter for example. Publication can also mean a ‘re-tweet’ and the Court of Appeal has said that numerous republications can be taken into account when assessing damages.

Traditionally there have been three main defences to a claim in defamation: (i) justification, i.e. truth which is a complete defence; (ii)”fair comment” soon to be known as ”honest comment”, which must be in relation to a matter of public interest; and (iii) privilege, where there is a duty for the publisher to make the statement to the recipient. Honest comment and privilege defences will fail if the Claimant can show that the publisher was motivated by malice.

“However, the law of defamation has recently seen significant changes with the introduction of the Defamation Act 2013 which received royal assent in April 2013, with a view that it would come into force later that year*

The Act’s aim is to reform the law of defamation to ensure that a fair balance is struck between the right to freedom of expression and the protection of reputation. The Act makes a number of substantive changes to the law of defamation but is not designed to codify the law into a single statute.

Key areas of the Defamation Act

• Introduces a “serious harm” threshold for libel actions. The new act states that “a statement is not defamatory unless it causes serious harm to the reputation of the claimant”. For companies this is stated to be harm which has caused, or is likely to cause, serious financial loss.

• Provides that trial of libel actions shall be without a jury unless the court orders otherwise.

• The defence of “justification” has been abolished in favour of a statutory “truth” defence. The Defendant has to prove that the statement complained of is “substantially true”. In practice it is likely that the underlying legal principles will remain the same.

• The defence of honest comment and publication on a matter of public interest is now in statutory form (in place of the common law defence referred to as fair comment).

• Provides a framework for a new process in relation to online posts, which will be put in place through regulations and will provide a defence to website operators if they are not the author of the post and comply with certain requirements.

• Give the protection of privilege to peer reviewed scientific and academic journals so long as a specified process has been followed.

• New provisions about jurisdiction and actions against those not domiciled in the UK or another EU member state. To prevent libel “tourists” litigating in England, the 2013 Act gives the court power to refuse jurisdiction unless it is satisfied that England is the most appropriate jurisdiction.

• Giving the court power to order that a summary of its judgment be published, and to order that a defamatory statement be removed from a website or distribution of it stopped.

Businesses should take steps to manage the risks of online publication. For example, a business should be careful as to who is given access to its official Twitter account and safeguards should be implemented to monitor tweets before they are published. Such caution also applies to website blogs.

Lockton Companies LLP have launched the first insurance protection designed specifically for self-publishing. The policy provides indemnity for costs and awards following allegations of defamation or breach of Intellectual property rights and is available for SME’s using social media and the internet for promotion. It is also relevant for e-publishers.

Insurance against the risks of being the subject of a claim for defamation is a prudent course to take, and the Parliamentary debates indicate an assumption on the part of the law-makers that insurance is the wise option.”

Professional advice should always be sought where you require assistance in specific areas of law. No responsibility can be accepted for any actions based on this Update.

Lockton Companies LLP: 0117 906 5000

*At the time this article was written the full provisions of the Defamation Act 2013 had not yet come into force.”

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