Social media has been around for but a decade. In that decade its impact has been phenomenal, not just in the area of social communication, but in neighbouring ones, such as the storing and dissemination of information. Furthermore, the use of that information as potential evidence is another consideration.
Numbers alone emphasise the enormity and potential power of the big three social media companies. 1.2 billion subscribe to Facebook, which is one fifth of the world’s total population. Twitter has 230m registered users, who send 500m tweets a day.
The dominance of Google as a search engine and social networking site is unquestionable. Coupled to this is the global nature of social media. Obviously when this powerful social media tool causes offence (just like more conventional media) such disputes come under the laws of libel. At its simplest libel can be defined as defamation, or damage, to someone’s reputation by written or printed words, pictures, or in any form other than by spoken words or gestures.
Defamation is a major issue in social media
The potential for defamation on social media sites is thus enormous. The technology makes it virtually instantaneous; its readership is global and its deletion is not easy. The first key legal issue is whether the social media companies can be held liable and responsible for what their subscribers post on their web-sites, or whether they are merely the publishing platform.
Ethical issues such as freedom of expression complicate the legal issues, and are ones of fundamental human rights. The second key legal point is the national nature of legal systems and jurisdictions. Countries of the world are bound by their own laws and jurisdictions. (Apart from EU laws, and even here there is conflict and tension between national laws and European laws.)The very nature of social media is global, but law is not. No wonder there is a lack of safeguarding and clarity.
So when social media’s messages are accused of being defamatory and breaching libel litigation is only possible in the courts where the dispute originates. This is why to date little relevant case law exists, and why it is often ineffective in remedying social media disputes.
Although global, most social media companies have their headquarters in the USA. One would expect the largest amount of case law to be there. Interestingly it is not.
The first Twitter libel (Twibel) case only reached court in January 2014. Courtney Love’s defence is that her tweet was merely opinion, not defamation. In cases outside of the USA Twitter has usually avoided being a party to the litigation. This was so in England and Wales in the landmark case of McAlpine v Bercow in 2013, where the claim was upheld that the tweet carried a defamatory meaning. Bercow was the guilty party and bore the costs of the case.
However, Google has been the named defendant in another landmark defamation case in England and Wales, Payam Tamiz v Google Inc 2013. Google’s defence was upheld at the Court of Appeal on the grounds that it was not the author of the offending blog page and “did not know and had no reason to believe” that it had contributed to publication of defamatory material.
In several smaller cases social media sites have evaded liability by complying with requests to remove offending blogs within a reasonable time limit.
So it would seem that thus far social media companies have escaped litigation, perhaps by the very lack of safeguards. Also such companies have their own teams of experienced lawyers.
The conditional terms for use of a particular website are complicated and extensive. Facebook’s runs to several pages. Of course, they are only right to protect their position as fully as possible. To do anything less would be foolish and not worthy of a global company with state of the art technology and lawyers at their disposal.
Court cases worth mentioning
A few cases have been tried in emerging jurisdictions and are worth a mention.
In India the court of Bombay found for the defendants, Facebook, Twitter and Google in 2013, when Parle’s claim that they had promoted a defamatory statement that its mango drink was contaminated. As in western jurisdictions, the court finding was that social media sites are only liable if they fail to remove defamatory/objectionable posts within 36 hours of receiving complaints. However, in Hong Kong in 2008 a court upheld the claim against the online service providers, as publishers of the defamatory material. Clearly this is an area of law that does need clarification.
Existing European E Commerce Directives have hardly any case law to substantiate them. Other laws pertinent to libel might be the Data Protection Act of 1998 and the European Human Rights Act of 1998.
As recently as April 2013 the Defamation Act was updated in England and Wales. Significantly it includes a section on ‘operation of websites’. This reiterates protection to operators of such in the clause: “It is a defence for the operator to show that it was not the operator who posted the statement on the website.” Also the Act seems to have tightened the conditions for an article to be found defamatory, it must show that it has caused SERIOUS harm to the reputation of the claimant. (Previously it was just harm.) The objective of the Act was to achieve a fair balance between “freedom of expression and protection of reputation”.
Advice from the Attorney General of England and Wales in December 2013 was published in order to help prevent social media users from committing a contempt of court. Again this advice seemed to put the onus on the individual using the site as a facilitator to be responsible for their postings, rather than the social media company providing the platform for that facility. What he said was: “Blogs and social media sites like Twitter and Facebook mean that individuals can now reach thousands of people with a single tweet or post. This is an exciting prospect, but it can pose challenges to the criminal justice system… This is not about telling people what they can or cannot talk about on social media; quite the opposite in fact, it’s designed to help facilitate commentary in a lawful way”.
To conclude: individuals are responsible for what they post on social media and are liable for breach of the law if their posts are defamatory. The position of the social media companies as the mere platforms of these posts seems to safeguard them from such liability.
This article was written on behalf of Vannin Capital. Visit their website to learn more about how litigation funding works.