Features

Defamation and social media

Encouraging the public to interact with your organisation through online message boards is increasingly popular, but there are pitfalls in allowing comments to be posted online.

Mark Scodie provides guidance to prove that you have taken ‘reasonable care’ as to for organisations on avoiding legal what is published on your page if it bears a set of house rules setting out which kind of contributions liability for defamatory postings are welcome and which are not – making it clear Mark Scodie that abusive, racist, defamatory and/or intimidating Solicitor Many membership organisations and regulatory content will not be tolerated. T: 020 7551 7672 bodies now use social media to raise their profile and [email protected] communicate with stakeholders. However, operating a Secondly, a careful judgement then needs to be made page or message board over which you maintain some about how those rules are to be enforced. Broadly, Mark has wide-ranging editorial control could make you jointly liable for any dispute resolution there are three options: experience servicing defamatory material published on your space by other 1. Pre-moderate every comment before it appears on a number of sectors, social media users. So how do you engage with social the page. (Social media sites vary as to whether coupled with a specialist media whilst guarding against such legal liability? interest in all forms of page operators may do this.) The advantage in media-related disputes. The law of England and Wales provides that anyone doing so is – hopefully – to ensure that no material contributing to the publication of a defamatory is ever published that breaches your own house statement bears joint responsibility for it – journalists, rules or gives rise to any legal complaints. The editors, corporate publishers etc. However, there disadvantage is that your organisation effectively has long been a defence available for those who becomes an ‘editor’ of all the user-generated unwittingly and innocently disseminate material material on its page, having consciously chosen containing defamatory statements, for instance to publish that material, and the innocent libraries or news vendors (see e.g. Emmens v Pottle dissemination defence above could not apply. The (1885)). A statutory innocent dissemination defence organisation would then be in the same position now exists under Section 1 of the Defamation Act as the original author of the comment should a 1996 (‘DA 1996’). A further, similar defence exists for claim for defamation arise, and may have to rely providers of ‘information society services’ as defined on proving the substantial truth of the defamatory by the Electronic Commerce Regulations 2002, but allegation or otherwise rely on the defences of those merely setting up their own social media pages honest comment, or absolute or qualified privilege, probably do not meet that definition as they do not to the extent these are available. normally, if ever, set up such pages for renumeration. 2. Moderate all third-party posts after they have been posted, and run the risk of missing something and Applying the DA 1996 defence to the internet, being fixed with responsibility for allowing it to organisations with editorial control over, say, Facebook remain online. or LinkedIn pages on which other internet users post defamatory material will enjoy a defence where they 3. Operate a policy of only moderating reactively, can show that they: i.e. only investigating specific statements after complaints are made. This is often called a ‘notice- n were not the author, editor or publisher of the and-take-down’ procedure and it allows website statement complained of; controllers to claim they did not know they were n they took reasonable care in relation to the publishing a defamatory statement before being defamatory statement’s publication; and alerted to it. So long as defamatory comments are taken down once the website controller is aware of n they did not know, and had no reason to believe, them, they are likely to benefit from the innocent that what they did caused or contributed to the dissemination defence. The disadvantage is that publication of the defamatory statement. your page or forum could become a favoured destination for those willing to post undesirable Organisations ought therefore to implement social material, as it is more likely to be published. media policies that allow them to make the most of this defence should problems occur. Firstly, it is easier The position is due to change somewhat after

Public & Regulatory Law Update | Autumn 2013 9 Features

elements from its Facebook or LinkedIn page). The new Section 5 gives website operators a defence to defamation proceedings if they can show they did not themselves post the defamatory comment on the website. However that defence will be defeated if the poster cannot be identified and the operator does not adhere to the mechanism set out in s5 and the regulations. To rely on the new Section 5 defence, operators must comply with ‘notices of complaint’ in respect of defamatory posts. Upon receipt of a notice of complaint in the correct format, website operators may still just delete the comment immediately if they wish. Alternatively, to the Defamation Act 2013 and the accompanying use the new defence they must contact the poster, Defamation (Operators of Websites) Regulations 2013 passing the complaint on and asking whether the come into force, currently expected to occur by the poster wishes the comment to be removed. If the end of 2013. Two new defences will be introduced poster wishes the comment to stay online, the to further protect website controllers from being held poster must provide the operator with their full liable for third-party postings: name and their residential or business address. The poster must also say whether they are willing n Section10 of the new Act provides that the court for their details to be passed to the complainant. will no longer hear defamation actions against So long as the website operator then passes on parties who are ‘not the author, editor or publisher the poster’s response to the complainant, the of the statement complained of unless the court operator has a complete defence even if the poster is satisfied that it is not reasonably practicable for wishes to remain anonymous and the post to stay an action to be brought against the author, editor online. The complainant may then only learn the or publisher’. So long as the controller of a social poster’s identity by obtaining a court order against media page does not make a conscious decision the website operator under the jurisdiction in to allow a statement to remain on the page after Norwich Pharmacal Co. & Others v Customs and being notified of it, then that controller may now Excise Commissioners (1974). If the poster fails to have a defence even stronger than the one afforded respond to the operator or provides obviously false by Section 1 DA 1996. So long as it would be details, the operator must take the posting down ‘reasonably practical’ to pursue the statement’s within 48 hours. author, this new defence will apply even if the website controller did not take reasonable care in Overall, organisations need not fear that engaging relation to the defamatory statement’s publication with social media will land them with liability for the or did know, or did have reason to believe, defamatory postings of third parties, so long as they that what they did caused or contributed to its have the right policies in place and act swiftly and publication. Fundamentally, however, this new smartly when problems arise. defence still depends on website controllers deleting third parties’ defamatory statements as soon as they are put on notice of them. Find out more n Section 5 of the new Act will allow website The full text of the Defamation Act 2013 ‘operators’, in certain circumstances, to continue and related documents is available from to publish complained-of material with impunity. http://services.parliament.uk/bills/2012-13/ (Neither the Act, nor the regulations, nor the draft defamation.html guidance fully define ‘operator’, but the term is likely to cover an entity that is able to add/delete

10 Public & Regulatory Law Update | Autumn 2013