Social Media Sites and Defamation Law
Across the globe, social networking via the internet is on the rise.
It is a sign of our times and of a changing media environment.
However it is important to remember that social media sites are not exempt from the State’s defamation laws. The law of defamation in Ireland is governed by, inter alia, the Defamation Act 2009.
Defamation under the 2009 Act is a publication (or broadcast) of a “statement that tends to injure a person’s reputation in the eyes of reasonable members of society”.
It incorporates material published by all means of communications, including that published on the internet.
Defamation is just as real on electronic media as it has been in print media for centuries.
Online defamation is the publication of such statements on e-mails, web-postings, Facebook messages, tweets and defamation law applies to this content.
Furthermore the re-posting of material from other websites is a publication and the same accountability attaches to that. While many internet users may believe that they are free to say and do whatever they may wish, this is untrue.
The law of defamation exists in order to protect the reputation of a person but also to support a person’s capacity for free speech so a balance needs to be struck between the two competing rights.
It is important to remember that on the internet it is very difficult to delete something because even if the original user deletes his comment other copies could still exist through “sharing” or “retweeting” by other users of the content. Since the enactment of the 2009 Defamation Act, the multiple publication rule whereby each copy of defamatory material published could be considered a new publication and therefore potentially a separate cause of action, has been revoked.
However, under section 11 of the 2009 Act the court has retained a discretion to “grant leave to a person to bring more than one defamation action in respect of a multiple publication where it considers that the interests of justice so require”.
It is clear that internet platforms, and not just individuals, need to be cautious. Platforms, such as Facebook and Google, operating in Ireland and Europe, are subject to Irish and European laws.
Their accountability is evident most recently when the High Court ordered their technical experts to assess whether it was “technically possible” to have all defamatory video expunged from the internet which falsely accused an Irish student (the plaintiff) from not paying a taxi fare.
The High Court acknowledged internet companies may find it “inconvenient” but the position was “people have availed of technology which is the property of [Facebook, Google, You Tube and Yahoo, Crowdgather and three internet commenters] in order to seriously defame the plaintiff”. The High Court judge was most critical of social media site users stating:-
“All manner of nasty and seemingly idle minds got to work on the plaintiff, and as seems to happen with apparent impunity nowadays on social media sites, said whatever thing first came into their vacant, idle and meddlesome heads, by posting statements and comments about the plaintiff, so vile and abusive that I ought not to repeat them here.
It must be borne in mind that most of these people do not know the plaintiff and have never met him. Nevertheless they felt free to move and brand him as a criminal.”
One of the clear signals to come from the case is that the legal establishment is of the view that comments made on social media sites, like Twitter and Facebook, are just as defamatory as comments that appear in print or on broadcast media.
In a sense, social media is being forced to grow up and those who use it can continue to do so provided they behave in a mature and responsible manner. They can express their points of view, provided they are not defaming a person’s character or business.
When “tweeting or “sharing” content online, it is important to consider carefully the veracity of statements being made and decline from sharing or retweeting anything you consider could be defamatory.