Have you been accused of posting something defamatory on social media? If so, this article explains what you need to do to limit the chances of being sued.

Could carelessness on social media land you in Court?

Did you know that you can be sued for posting something online that is not true or for sharing or endorsing a false post made by someone else?  Did you also know that if you are sued, you could be ordered to pay compensation and legal costs and forced to make a public apology?

If the answer to these questions is ‘no’, then you are not alone, as recent research suggests that nearly 50 per cent of the UK’s 45 million social media users are not aware that they are legally responsible for what they do and say online.  

‘There has been a significant jump in the number of legal claims for defamation or libel being made as a result of social media posts,’ explains Bill Dhariwal, a civil disputes lawyer with Lawcomm Solicitors in Whiteley, Hampshire, ‘and those who have been found guilty have been ordered to pay some hefty sums of money.’

For example, in 2013 Sally Bercow, wife of the former House of Commons speaker John Bercow, was ordered to pay £15,000 to Lord McAlpine over a tweet she posted following a TV documentary into alleged child abuse by a senior, but unnamed, former Conservative politician, which read “Why is Lord McAlpine trending? *innocent face*”.  

In 2015, the parent of a former pupil at St. John’s Preparatory School in North London was ordered to pay £95,000 after posting an online petition in which they made a series of untrue allegations, including that the headmistress of the school was a bullying authoritarian who had inflicted unimaginable psychological suffering on pupils and caused parents to regret their school choice.  

When you might face a claim

For legal action to be taken against you for something you have posted or shared online, generally you must have written something or shared something written by someone else that is untrue and which has caused or is likely to cause the person who is threatening to sue you serious reputational harm.

If you are accused of saying something untrue or harmful about a business, then they must have suffered serious financial loss before they can take legal action against you.

It does not matter that you have not named the person or business in question.  If they can be identified from your post or online activity, then you could still find yourself in trouble. It is also irrelevant that you did not intend any harm.

How to limit the damage

If you admit that something you have posted or shared online is untrue and has or may result in serious harm being caused, then there are several things that you might be able to do to limit the damage.  These include:

• removing the offending post;

• issuing an apology; and

• clarifying the message you were trying to convey, where there is room for doubt or what you have said has been misconstrued.

Why urgent legal advice is needed

Legal advice should be sought as soon as possible to avoid the risk of making matters worse.  You will be able to clarify whether you need to hold your hands up and admit that you have done something wrong or whether you may be able to defend yourself on one of several bases under the 2013 Defamation Act.

For example, if there is a question about the factual accuracy of everything you may have said, but no doubt that the substance (or main thrust) of what you said is true, then you may be able to escape prosecution.  Likewise, you may have a defence where you can show that what you posted was an expression of your honest opinion about something.

You may also be able to ward off proceedings where action against you is not started within 12 months of the allegedly defamatory or libellous statement being made.

Our experts can also help you to determine the approach to take when formulating your reply and specifically whether it is advisable for you to go in hard with a robust denial and defence of your position on the basis that what you have said is true and justified, or whether a more cautious, less bullish (or even contrite) approach is warranted given that the rights or wrongs of your actions are unclear or there is a question mark as to whether what you have said is borne out by the facts.

They will outline your options for dealing with the matter and help you to explore ways of resolving the dispute outside of Court and on terms which you and the person you are accused of defaming find acceptable.

Cases where words are capable of more than one meaning

In cases where the truth of a statement turns on the meaning applied to the words you have used, the approach that will be taken is to consider what those words would have meant to an ordinarily reasonable reader of social media when viewed in the context in which they were written.

This was confirmed in the case of Stocker v Stocker (2019), where the UK Supreme Court said that in determining whether a social media post is defamatory regard must be had to how the post would have been interpreted by the typical social media reader, bearing in mind that platforms like Facebook and Twitter are casual, conversational mediums in which posts tend to be read through quickly and without over analysis and in which the ordinarily reasonable reader:

• is not naïve, but also not overly suspicious;

• can read between the lines and draw conclusions about what you are trying to say, even if you do not expressly say it; and

• who may sometimes jump to conclusions, but who is not looking for scandal and who will not assume that words mean something defamatory where they could equally mean something not defamatory.

The Court also confirmed that the starting point in determining meaning is to consider the context in which the allegedly defamatory statement was made.  

Thus, in Stocker, the Court concluded that when Mrs Stocker made a Facebook post in which she said that her ex-husband had tried to strangle her, the meaning attributed to those words was not that he had tried to kill her, but rather that he had gripped her by the throat and applied force to her neck.

The reason for this was that the statement was made in the course of an online conversation with Mr Stocker’s new partner, in which Mrs Stocker (who was clearly still alive) had sought to draw attention to her former husband’s violent behaviour and in doing so had cited a number of examples, including the strangling incident, the making of threats, the breach of an anti-domestic violence Court order and issues that had arisen concerning guns.  

While Mrs Stocker was ultimately absolved of wrongdoing, her comments resulted in legal proceedings which dragged on for years and which might have been avoided had she paused to think about what she was proposing to say before hitting the ‘post’ button.

For more information on defamation or libel, online or otherwise, please contact Bill Dhariwal on 01489 864 117 or via email at bill.dhariwal@lawcomm.co.uk.

This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.