The rise and rise of defamation on social media

31 January 2022

In this article, Emily Cox and Palomi Kotecha in our Media Disputes team round up a cluster of recent cases that have come out of the Media and Communications Court regarding defamation on social media.

Gone are the days when defamation cases going all the way to trial typically involved newspapers and high-profile individuals. Increasingly, we are seeing ‘normal’ people taking on social media ‘keyboard warriors’ who have attacked their reputations. This is happening despite the high costs associated with taking a defamation claim all the way and the relatively low damages awarded.

Litigation against persons unknown

The claimant in Blackledge v Persons Unknown is a senior academic lecturing on politics and ethics. He was the target of a campaign of online abuse in the form of anonymous blog posts further disseminated on Twitter and by email. The posts made defamatory allegations of sexual misconduct, rape and sexual assault, with multiple references to #MeToo.

Judgment in default had previously been given in the claimant’s favour, so this most recent hearing was for damages and relief. Mr Justice Saini was satisfied that the hearing could proceed in the absence of the defendant as it was unlikely that the identity of the individual(s) behind the website and blog posts would be ascertained; the claimant had taken all practical steps possible to notify them of the original process and this particular hearing.

As to relief, the judge considered it was necessary, just and appropriate to grant an injunction to restrain any further publication and make an order under s13 of the Defamation Act 2013, namely for Google (as operator) to take down the website containing the defamatory blog posts. This was because it was unlikely that the defendant would comply with the injunction given their failure to identify themselves or engage with the proceedings. Mr Justice Saini described the case as “a striking example of how the internet and social media can be used to abuse and damage innocent individuals with apparent impunity”.

The judge also awarded relatively substantial damages of £70,000 to reflect the “total falsity” of the claims. Mr Justice Saini reiterated that damages for libel have three primary purposes:

  1. to compensate for distress and hurt feelings,
  2. to compensate for actual injury to reputation, and
  3. to serve as an outward and visible sign of vindication.

He said allegations of rape and sexual assault are extremely grave, and the articles were all individually extremely serious, but they were even more so when taken collectively.

In particular, the judge commented on the fact that they were shared using the #MeToo hashtag, which is often a trending topic and would have led to wider dissemination. He considered the grapevine effect among the academic community to be highly material. The claimant also gave direct and compelling evidence of his distress, despair and shock at the allegations.

Damages as against an influencer and with a small audience

Mr Justice Saini was also the sitting judge in Aslani v Sobierajska, another social media libel case. This concerned a social media influencer who had complained about her buttock augmentation surgery or ‘Brazilian butt lift’ in four publications (on Instagram and the review site RealSelf), saying the defendant plastic surgeon had botched her body and left her disfigured. The defendant was a well-respected plastic surgeon based in Marbella but who sued in the UK as this is where 70% of his clients are from, so the influencer’s comments would have had the most damaging impact.

The judge again referred to the “total falsity of the allegations” and awarded damages of £40,000. He was satisfied that the publications had a significant impact on the defendant’s professional and personal life. Fifteen people had noted the publications to him, and his bookings were down, with six people deciding not to go ahead with surgery, citing the defendant’s posts.

Lesser damages were awarded in Wozniak v Randall. Two residents in a village in Cumbria believed themselves to be the owners of a parcel of land, in respect of which there was a dispute about ownership and vehicular rights of way. The defendant posted eight online articles on a community website, which described the claimants as liars, thieves and bullies who threatened vulnerable elderly people and carers who tried to park on the land. The website was addressed to the 50 inhabitants of the village, but the impact of the article was likely to be magnified given this was a small country community.

Mr Justice Soole awarded damages of £7,500 each, with £6,500 being awarded in respect of the first article, which was serious and touched on each claimant’s integrity and general reputation, and a further £1,000 for the third. The other articles did not warrant further awards, and two of the articles were held not to be defamatory.

Context, fact and opinion

The High Court also recently gave judgment on meaning in the preliminary issues libel trial of Miller and Power v Turner, which concerned 16 tweets and a website published by the defendant in 2018 alleging that the claimants were antisemitic, fascistic and had made death threats. The website republished one of the tweets and included links to an ‘archive’ of online material under a content warning.

The claimants are a Jewish American writer and a university philosophy lecturer. The defendant is an anti-fascist Jewish artist and writer. The claimants contended that all the content contained allegations of fact, which could be assessed on a bare reading of the tweets. The defendant argued that the judge should take into consideration other material, including embedded hyperlinks and the reading of threads and conversations of tweets as a whole, as this would show that some of the content should be regarded as opinion. This focus on fact versus opinion is because the honest opinion defence under section 3 of the Defamation Act 2013 affords defendants considerable latitude.

Mrs Justice Collins Rice made it clear that the focus ought to be on the nub of the matter, the section of a publication containing a potentially defamatory ‘sting’, rather than the entire publication. However, the intrinsic limitations of a tweet mean it may be simpler and more accurate to determine the meaning of the whole thread. The ordinary reasonable reader in the context of a tweet would have some contextual awareness of the authorship and subject matter of the tweets. The judge held that ‘antisemitism’ and ‘fascism’ in context were opinion and not fact.

Conclusion

This cluster of cases confirms that Twitter-related ‘twi-bel’ cases are not going anywhere. As a more substantial body of case law develops, determining such cases should become an easier exercise for the courts.

Blackledge, in particular, provides valuable guidance in relation to defamation claims against persons unknown online. It is one of the first to make an order under section 13 and provides hope that this will be used more widely to ensure injunctive relief is effective.

 

Source: https://www.stewartslaw.com/news/the-rise-and-rise-of-defamation-on-social-media/


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