Defamation is the publishing of a statement regarding a person’s reputation to the effect that the statement lowers the person in the estimation of right thinking members of the society. The offence is divided in two different torts; slander and Libel. The earlier distinction between the two indicated that libel involves publications made in printed form while slander is basically oral defamation. However, with recent technological advancement, the approach is that libel occurs when the defamatory statement is in permanent form while slander has to make statements which are not recorded or not in permanent form. In order to establish a claim in defamation, the plaintiff must prove the following. First, the statement complained of must be defamatory. Secondly, the statement must have been referring to the plaintiff. Finally, it must have been published. Publication in this context means communication to at least one person other than the claimant. With libel, there is no point of proving that the published defamatory statements caused injury to the plaintiff because the law presumes that once the statements have been published, then injury to the subject matter of the statement is always inevitable. However, the case of Jameel v Dow Jones Ltd proved that judges approach the issue of culpability in defamation with much trepidation. If there is no substantial injury suffered by the claimant, the suit is likely to collapse. There are also slanders which are actionable per se. For instance, imputing a criminal offense punishable by imprisonment; imputing disease, and imputing unfitness or incompetence all lead to culpability without proof of injury suffered.
The Defamation Act 2013 is the law governing issues of reputation and defamation in the United Kingdom. The Act was expected with anxiety because the previous legal regime on defamation was to a great extent repressive, unfair and uncertain. The law is mooted to have stricken a fair balance between freedom of speech or expression and the right to a good reputation. Considering the fact that the previous regime was inclined towards favoring reputation as opposed to free speech, Judges often found themselves unable to adjust the meaning of defamation in tandem with the prevailing circumstances. For instance, in Reynolds v Times Newspaper Ltd, it was hard to rule against the plaintiff on grounds of public interest and privilege because the law and precedents had not progressively factored in these issues. The Act thus makes some notable adjustments to the law of defamation. To start with, it substituted the more ambiguous defense of fair comment with defenses of honest opinion and scientific publication. Perhaps these developments are largely informed by the decision in Singh v British Chiropractic Association where the Court entertained the defence of fair comment because the comments made were part of an editorial of a scientific background. In addition to this the Act abolished the jury in defamation proceedings unless if requested by the judges. Also, the Act makes precise clarifications about the first publication rule and goes ahead to protect website operators for content that they may not have been the first ones to publish on their websites and even when they published, there was no malice attached to their actions. Overall, in as much as the Defamation Act 2013 makes provisions promoting free speech in the country, there Act is more inclined towards protecting the reputation as will be further espoused in this paper.
Defamation Law has been for a long time a custodian of two important Human Rights; the right to a good reputation and freedom of speech. With the advent of the Defamation Act 2013 had to factor in the jurisprudential developments in the International Human Rights regime. The European Court of Human Rights has grappled recently with striking a balance between the right to a good reputation and freedom of expression. In the case of MGN v United Kingdom the court noted that the process of balancing the two interests requires that each member state has to have a slightly wider margin of appreciation. The implication of this is that all member states have a slightly wider discretion when it comes to protecting the reputation of a person. The states have a right then to decide on how stiff and fast this provision has to be implemented. It is from this conception that the Defamation Act was designed to be more flexible to both conflicting rights.
The Common Law conception of defamation did not factor advancement of technology that would tremendously change the manner in which communications are massively relayed over a short period of time. That is why the legal regime on defamation has lagged behind while trying to catch up with social media. The use and proliferation of social media have tremendously expanded in recent years. Launched in 2004 and 2006 and 2010 respectively, Facebook and Twitter alone have over 2 billion users at present. With the rise of the number users in the social media sites, the magnanimity of reckless statements also increases. In as much as social media is of probative value to the society because of easy communication, it has also proven to be injurious to the reputations of some people since there is no precise regulatory mechanism of curbing false statements. It has become slightly difficult for the sites to regulate the nature of posts made on their platforms. Therefore, the law is often called upon to assist the aggrieved parties in accessing justice.
The Social Media has reinvented a totally new news cycle that drifts from the traditional approach of media outlets. There is now a new category of publishers who do not have any background in journalism and communication studies. With this ineptitude in sight, the publishers have the privilege of a rather bigger audience than the ones enjoyed by traditional publishers. Therefore, from a lay position, if false and malicious information is posted about a person, the communication is likely to cause magnanimous harm because of the manner in which information spreads fast on social media and how many people are likely to access the information. The fact that nowadays people can comment on, add, change or edit stories on social media, makes the platform, even more complex as far as defamation is concerned.
Claims emanating from the publication of defamatory material online, especially video social media greatly contributed to a spontaneous increase in the number of defamation cases reported in 2014 and 2015. This is because the law of Defamation has often taken a protectionist approach where the reputation of a person is grossly at stake. Most litigants are motivated to pursue favourable judgements in jurisdictions where the law is friendly to their claim. This friendliness message was sent from the case of McAlpine v Bercow. In this case, Justice Tugendhat proclaimed that Mrs Bercow’s tweet was defamatory and this came even as the plaintiff had already accepted an earlier offer for settlement. The legal analysis described this case as a warning to all users of social media. This case was an improvement from Cairns v Modi in which match fixing allegations were made on twitter. The main point of consideration in these cases was whether the audience, which the information was published could understand the statements and what would be their objective construction of such information.
If a statement has been adjudged defamatory or is generally injurious to a person, the aggrieved party may make takedown requests to have the service provider retract the statement of that site. The Court of Appeal’s judgment in the case of Tamiz v Google, stipulated that a site operator cannot invoke the application of section 1 of the Defamation Act 1996 so long as they have been notified of the defamatory content. They are definitely obliged to pull down the statements from their site. This argument, however, does not stand where the service provider is not the author of the defamatory statements. In the case of Richardson v Facebook, Warby J dismissed the two similar appeals predicated on defamation and contravention of Article 8 of the ECHR. Facebook and Google had been sued separately for the same claims which related to information published by fake profiles both on Facebook and Google’s Blogs. According to the claimant, both posts were defamatory and injurious to her private life. In addition to retraction, the Claimant also sought pecuniary and non-pecuniary damages for injury suffered. This claim was majorly thwarted by the defendants’ assertion that neither Facebook nor Google were the responsible for the publication of that content on both platforms. When making this appeal, Ms Richardson relied on the ECJ decision in the case of Google Spain SL, Google Inc. v Agencia Espanola de Proteccion de Datos (AEPD) and Mario Costeja Gonzalez on the right to be forgotten. She asserted that Article 8 bound subsidiaries of Companies which were responsible for online publication and also an entity was liable for publication so long as a defamation claim was subsisting. This position was rejected by the learned judge who opined that with respect to Article 8, the claimant had simply confused the EC and the ECHR. In addition to this Section 1 of the Defamation Act 1996 as well as Sections 1 and 5 of the Defamation Act 2013 could not be considered as defenses since the plaintiff had not met the Common Law threshold of proving that the defendants had been responsible for publishing that information.
The approach taken by courts in cases involving Social Media defamation cannot be construed to have a unified direction. There are mixed signals where on one hand the courts would readily tolerate a claim and reprimand the defendant and on the other frivolous and vexatious claims are equally shunned. However, in as much as the current legal regime protects the reputation more than freedom of speech, many defendants have devised ingenuous ways of circumventing liability and thus escape being nailed by the regime. The general rule is that service providers like Google and Facebook could be culpable as publishers having been put on notice as was in Tamiz v Google Inc. However, there are a number of legal provisions that are often invoked in such circumstances if the aspect of notice is not present. To start with, according to Section 10 of the Defamation Act 2013, the court does not have jurisdiction if the party being sued did not author, edit or publish the statements complained of unless it is feasible and practicable to sustain a claim against them. Secondly, the service provider may argue that it followed all procedures of Section 5 of the Defamation Act 2013 and as such no liability would arise. The third shield available is Section 1 of the Defamation Act 1996 which allows for innocent dissemination as a defense or hosting as another defense. Therefore the chances of a suit in defamation succeeding against Social Media Platforms are so minimal, if prior notice was not issued about the nature of defamatory content yet to be posted.
The aspect of reputation in the context of Social Media is of primary interest to the Courts. However, as discussed above a social media platform can only be sanctioned if prior notice was issued about the nature of the content which is yet to be published. In that case, the floodgates opened at the advent of social media are still wide open. There is still little room for reprimanding persons who use the platforms inappropriately by vilifying others. This is a retrogressive state of affairs to the extent that the legal regime at present cannot ensure that the fundamental rights of persons are respected by others. The reasoning behind this is that the most renowned search engines like Google are often in competition with traditional news outlets in merging news. At the same time, they are also service providers and regrettably, they enjoy a newly created defence under the Act. This aspect of the Act is actually a victory for Internet Search Providers. However, if the person who posted the defamatory content cannot be identified or if the service provider was informed of a defamatory posting and refused to adhere with the procedure; that is when the claim can stand. This is an anomaly because it is most improbable that any person would waive their anonymity and subject themselves to a legal suit in defamation. With respect to this, reputation has also been over protected because since most internet service providers would not dig deep on who posted the information, the wisest move is to take down the post and evade liability in defamation. A posting or article could thus be taken down even if it was not injurious to the complainant at all and this clearly curtails freedom of expression. In addition to this, many service providers would opt not to go down the court process and thus remove the posts to avoid the bureaucracies within the legal system.
Freedom of Expression
As discussed previously in this paper, a judge in a defamation claim is always presented with a dilemma; in which he has to decide between right and right. On one hand, there is the concept of the right to a good reputation. While on the other, there is freedom of expression which is also a fundamental Human Right that has to be reasonably enjoyed by all as the Supreme Court noted in Joseph v Spiller. The essence of defamation law is actually to control expressions which injure people’s reputation without any justification. With respect to expression, every person is entitled to express their views about anything in a free society. Therefore, the liberty covers all members of the public. However, the biggest beneficiaries of freedom of speech are the media establishments which make revenue out of dissemination a bulk of information. In as much as their freedom of speech has to be protected, it is also imperative that they make publications that are not actuated by malice, ill will or an uncontrollable drive to get massive readership unscrupulously. Freedom of Speech is protected under the current defamation law regime, especially through the defenses available to persons who have been sued for defamation. In essence, a person cannot be held to have defamed the other if the statement they made was true; if it was an honest opinion held by them; if it is just a statement commenting on matters of public interest, and finally if it is privileged as a scientific or academic journal. This is how freedom of speech is protected under the current law of defamation.
The Defamation Act of 2013 generally sought to bring defamation into the 21st Century and to bring forth a more balanced and fair law. It managed to slightly tilt the balance from the protection of reputation towards protection of freedom of speech. This was by introducing new defenses, like an honest opinion and scientific publication. The Act also protects social media platforms by providing them with a new array of defenses as has been espoused in this paper. This is indeed a step forward towards ensuring that free speech is promoted in the society. However, it is evident that the current law on defamation locks out corporate litigants from accessing many avenues as concerns defamation. There is established a very high threshold of proving that serious financial loss was suffered by the firm before their claim can succeed. Even though most of these developments are generally commendable, there exist notable loopholes in certain provisions of the law. To start with, the defense of the public interest has been left wide open such that any person can make reckless statements and claim that it was in the public interest that they comment as such. In addition to this, the Act has also technically obviated the need of having juries listen to such cases of defamation. This implies that a much wider discretion is given to the judges first in interpretation of the statute especially with aspects like public interest. For instance, in Flood v Times Newspapers, the court expanded the applicability of public interest to include editorial comments. Secondly, the Judge also has overarching leeway to make decisions unimpeded by any jury, which would have been so impactful. On top of this, the Act provides that the Judge might invite the jury to listen to certain cases of Defamation. The criterion of allowing the jury into these matters has not been stipulated precisely. Therefore, in as much as the Act has been heralded as the custodian of the general freedom of expression in the modern society, there are pockets of flaws which will allow reputation to be center stage again.
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