Author: David Rosen
Let me start by saying that there is nothing wrong whatsoever in Liking, favouriting, posting, tweeting, or retweeting this blogpost.
You can rely upon what I am saying up to a certain extent. It all depends upon what you say, how you say it, when you say it, what it refers or alludes to, and in what context such words are being said.
Offensive, defamatory or abusive behaviour on social media?
The terms, ‘offensive’ and ‘abusive’, are treated differently in social media platforms. The former, at least in England and Wales, is more sinister than what is understood by a defamatory comment written and published. ‘Offensive’ is governed by the Miscommunications Act. It is a criminal offence and is punishable by a fine and/or imprisonment if convicted. ‘Abusive’ is a confusing word, referred to in Twitter policy, without a current definition.
This blogpost focuses upon defamatory comments written and published on social media platforms.
We have heard over the past few weeks in the British News of those who wish to protect their names on social media platforms. I readily agree that they should be able to do so. I do not readily agree as to the manner in which this is carried out.
Does everyone now understand and accept that labelling people of terrible things, which is unfounded, is wrong? I am aware of the arguments of parody, free speech, satire, and syllogism. They all have their place in social media, and long may it continue. We shouldn’t take ourselves or others too seriously. Statements and comments made, need to be placed into the context they were said or referred to.
Allegory and satire play a very important role in the development of society and our understanding and treatment of social responsibility. That is a discussion and consideration for another day.
Original author of defamatory comments
Certainly, if you were the original author of such defamatory labelling, and find out that what you have said is untrue, you should immediately apologise, withdraw what you have said, and pay damages/compensation.
What if you were the 2nd, or perhaps the 3rd, or perhaps the 10,000th person to publish the same defamatory thing? What then? Are you no longer liable, because someone else said it?
The English Law is that just because you repeated what someone else said, does not make you any less of an offender of someone’s feelings. The Repetition Rule is alive and kicking.
Surely, the Courts recognise that when someone repeats the offending comments or labelling, they should not have to pay the same amount of compensation as previously paid by the initial offender? To a large extent, this is true.
Compensation for online defamation, libel, slander
Section 12 of the Defamation Act 1952, provides a mechanism by which those offended should not continue to profit from what they have already been compensated for.
The Law recognises that an Industry or lifetime of suing, should not be encouraged. This is precisely why we have a common understanding in Law that if you are going to bring a claim in the Courts, it should be against one party, or a number of parties emanating from the same or similar facts at the same time. To bring a series of cases, consecutively rather than concurrently, based on the same or similar facts, is likely to be considered an abuse of process, and you as the offended, may lose all credibility and sympathy, resulting in payment of costs to an offender because you…over-egged the pudding.
Does ‘Liking’ amount to repeating of offensive comments?
On some social media websites, when you press the ‘like’ button, the comments made are repeated like a ‘Re-Tweet’ or RT on Twitter. This is when a problem possibly arises.
That is different from pressing the ‘like’ button, when on a social media platform you are simply acknowledging what has been said. It would be a nonsense to say, that anyone who read such a comment was liable. It would be synonymous to suing anyone who read a paper with defamatory comments.
What about ‘Favouriting’?
On Twitter, when you favourite what someone has written, the entire 140 words are shown to the public. What if it was an attachment to an article? Technically you have still published and referred to it. I have yet to see any case law arise, but the principle exists of the possibility of being a wrong-doer.
What about ReTweeting?
You are publishing what has been said.
Defences to claims for online libel or defamation of character?
Fair comment: Fair comment arises when what has been said is true, or relied upon as being true. Self-explanatory, really.
Innocent dissemination: This is where some distribution is so mechanical that one should not be held liable unless they ought to have realised that there was defamation involved.
The defence exists really in closed forums where like-minded people discuss similar comments and the general public do not have access to it.
It remains to be seen whether ‘innocent dissemination’ can be used or developed to current libel cases.
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