The unprecedented growth of social media has seen the number of defamation cases involving online content rapidly increase. The popularity of sites such as Facebook and Twitter and the ability for users to share their views, or 'retweet' defamatory or potentially harmful statements, can present a huge problem for individuals and corporates trying to protect their reputations from harmful user-generated content.
The recent high profile case of Lord McAlpine being wrongly accused on Twitter of child abuse highlighted this problem and proved that defamation on Twitter is just as serious as defamation in print. Although McAlpine has now dropped cases against those with less than 500 Twitter followers, in favour of a modest donation to the BBC's Children in Need, the situation underlines that published defamation has damaging consequences. Social media users are wrong to think they can operate outside Britain's strict law on defamation, which protects a person's reputation, regardless of the medium of delivery.
The legal position of an individual posting content online, be it on Facebook, Twitter, or on comment sections of online news pages, is clear: he or she is responsible for that content. The law of libel makes it an offence to communicate defamatory remarks in any situation where that communication takes some form of permanence. Ignorance of the law is not a defence and that applies not just to individuals, but also to employers who could find themselves taking responsibility for statements made by their employees which are later deemed to be slanderous.
What makes Twitter a particularly dangerous environment is that anyone can rapidly reach a huge audience if their post "goes viral" and is repeatedly reposted by other users. In addition, many users have been surprised to learn that they can get into trouble not only for posting libellous information, but also for simply retweeting or reposting someone else's tweet. The McAlpine case shows this very clearly, as it identified around 1,000 original libellous tweets and 9,000 further libellous retweets. Although this is of course a very high profile case, the implications of the McAlpine example are true at every level - so employers should take note.
Several surveys and employment tribunal cases over the past year, from varying perspectives, have shown that employers need to provide clear guidance to staff regarding how they use social networking sites in the workplace to ensure that employees use sites responsibly and are careful about what they say online. Therefore, a clear social media policy should be in place.
This policy should clearly set out that defamation law applies to all of those using social media, and they should be especially wary when using accounts linked to the company. More importantly, employers should ensure that all their employees are made aware of the company's social media policy and understand it clearly.
Without such a policy, the naïve or uninformed do not always have the foresight to realise the potential of their actions. The fact that social media sites are at virtually every employee's fingertips can make the temptation to log on and vent feelings about co-workers, supervisors, or employers too easy to resist and this, of course, can lead to serious consequences.
Looking at the bigger picture, it's difficult to say whether a new Defamation Act which focuses more closely on libel issues on social media sites, will be able to set clear guidelines that could genuinely keep up with the fast pace of social media as it develops. However, one point which is clear from recent cases is that we are all publishers now, so both individuals and employers would be wise to ensure they are fully informed.
Jeremy Dickerson, defamation Lawyer, Burges Salmon