DEFAMATION RISKS AND SOCIAL MEDIA

DEFAMATION RISKS AND SOCIAL MEDIA

A sharp increase in the number of defamation cases taken in the courts is linked to the growth in social media use.

Pat McInerney, Partner @HOMSsolicitors #Defamation #SocialMedia #RiskManagement

IN BRIEF

Online publishing via social media is now immediate, free and easily accessible. Anyone can publish content without the input of a legal team to veto high risk content. Such freedom and accessibility raises issues for online publishers who face the possibility of defamation claims.

Individuals, employers, corporates, organisations and clubs all need to take care when publishing online. Employers and various organisations should train their members to protect their reputation online and to decrease the risk of being the subject of defamation actions.

INTRODUCTION

An action in defamation can be taken in respect of comments, inaccurate statements or false reporting, for example, that are capable of harming a person’s reputation. In recent years there has been a sharp increase in the number of defamation cases taken in the courts, which is being linked to the growth in social media use.

THE DEFAMATION ACT 2009

The Defamation Act 2009 (“the Act”) endeavours to maintain a delicate balancing act by seeking to vindicate the right of the individual to his or her good name whilst, on the other hand, attempting to respect the notion of freedom of speech.

A “defamatory statement” is defined as one “that tends to injure a person’s reputation in the eyes of reasonable members of society”. In order to be successful in a defamation action, the plaintiff must show “the publication, by any means, of a defamatory statement concerning a person to one or more than one person”. Publication, in this context, essentially means communication to a third party, by any means.

A defamation action has a one-year limitation period, which can be extended to two years in exceptional circumstances. For defamatory statements published online, the cause of action accrues on the date that the statement is “first capable of being viewed or listened to through that medium”. All defamatory statements are now actionable per se, meaning that they do not require proof of actual damage having been suffered by the defamed party.

SOCIAL MEDIA

Online defamation is the publication of such statements in e-mails, web-postings, Facebook posts, tweets and mobile phone group messaging such as WhatsApp groups. Furthermore, the re-posting of material from other websites is a publication and to which the same accountability attaches. Even though the Act applies to all publications, including those online, the omission of express provisions in relation to online publications in the Act has been heavily criticised, given the prominence and ubiquitous nature of social media.

It is notable that protection for Intermediary Service Providers (“ISPs”) is provided for under the EC (Directive 2000/31/EC) Regulations 2003 (the “E-Commerce Regulations”) in certain circumstances. The E-Commerce Regulations protect Internet Service Providers (ISPs) where they are acting as mere conduits for consumers to access content through their internet service. Other intermediaries are protected, such as Google and Facebook, by excluding them from liability under a “hosting defence” for the vast volumes of material passing through their systems where they are not aware of the defamatory content. However, where such intermediaries have been given notice that the content is defamatory, they should take such content down expeditiously to be able to avail of the hosting defence.

However, in the recent High Court case of Muwema v Facebook Ireland [2016], the Court refused to order that Facebook take down defamatory content posted by a third-party due to the likelihood that Facebook would succeed with a defence of innocent publication under s.27 of the Defamation Act 2009. The Court held that the fact that Facebook was made aware of the defamatory material did not affect its entitlement to rely on the innocent publication defence. This can be contrasted with the situation regarding the hosting defence under the E-Commerce Regulations.

There have been several publicised awards or settlements for social media defamation recently. For instance, the HSE settled a case paying €40,000 to the mother of a child in foster care who claimed she was defamed when the foster carers posted on Facebook about the care of the boy by the mother. An award of €30,000 was made to a couple against their neighbour in County Donegal who had posted about them on Facebook in respect of allegations of an affair, amongst other things.

In addition, an interesting recent UK case demonstrates that WhatsApp messaging groups are becoming an issue. A man was prosecuted for being in possession of illegal pornographic material which he had received through a group WhatsApp message. This raises the real risk of group administrators (such as, in certain cases, organisations, companies and clubs) and others in a WhatsApp group being at risk of defamation actions where sharing of inappropriate content in such groups takes place.

CONCLUSION

Individuals, employers, corporates, organisations and clubs all need to take care when publishing online. Employers and various organisations should train their members to protect their reputation online and decrease the risk of being the subject of defamation actions.

For further information please contact Pat or one of our Defamation and Privacy team members.