In the light of all the current interest, I’ve put together a little basic guide to defamation on twitter. This isn’t anything like ‘legal advice’, and please remember I’m an academic, not a practicing lawyer… but this should give you some idea of what defamation means, and how it might apply on twitter! Remember too, that this is based on the law as it exists in England and Wales.
What is a defamatory statement?
The basic principle is that a statement is defamatory if it substantially affects, in an adverse manner, the attitude of other people to the complainant or has it has a tendency to do so. This definition is very broad ranging so many ‘nasty’ statements about another person come into the range of potentially defamatory statements. Note there is no need to show that the statement does actually affect what other people think of the complainant: it is enough that the words have a tendency to do that.
Can anyone be defamed, or only famous people?
Everyone has a reputation – and anyone can be defamed!
If the statement is true, is it OK?
Many true statements about a person are defamatory. So to say of a convicted murderer that he is a murderer is defamatory but true. If you, and you have the burden of proving this, can prove what you said was true then you MAY have a defence available of ‘justification’. Can you prove it? See defences below!
Do you need to name the person for it to be defamation?
To be able to bring a claim a person must be able to prove that what was said pointed to them. Normally this will require that they be named but that it is not always necessary All that’s needed is for it to be possible for a ‘reasonable reader’, to be able to come to the conclusion that the statement referred to the person. If they can ‘join the dots’, then even without the name, the statement could be defamatory.
Are you OK if you put ‘allegedly’ before your statement?
No. This is an urban myth. It doesn’t help at all. Similarly, saying ‘I’ve been told that…’ or words to that effect don’t help.
Is it OK if it’s just a joke?
Not necessarily. Some ‘jokes’ have been decided to be capable of being defamatory. The question in every case is whether the words read in context adversely affect a person’s reputation, or have the tendency to do so. ‘Jokes’ can have this effect.
What kind of defences can you have?
The main defences for the kinds of statements made on twitter are likely to be:
- Justification – that the words are ‘true in substance and in fact’. This essentially means that you’ve told the truth, and in such a way that doesn’t imply something untrue either, e.g. by using only part of the truth, by quoting out of context etc. Note that you have the burden of proving that the words are true.
- Honest comment – if you’re offering an opinion (and not stating a fact) on a matter of public interest, and your opinion is based on true facts, then you may be able to rely on the defence of honest comment. Putting ‘in my opinion’ at the beginning of the sentence does not automatically mean the statement will be treated as such. The question the courts ask is would a reasonable reader regard the statement as one of fact or comment. So ‘in my opinion, X is a paedophile’ would be likely to be treated as a statement of fact, while ‘X is a loser’ would in all likelihood be treated as comment. The line between the two is however very imprecise. Even if all the above elements are shown to exist by the defendant, the defence will be defeated if it was made out of malice.
- The Reynolds defence – this is a defence originally developed to protect journalists, who do their investigation and write their story with appropriate diligence. If they do that, and the story is about a matter of public interest, then even if they get their facts wrong, they may be protected. This is complex – and for most non-journalist tweeters is unlikely to apply.
Can a tweet be defamatory?
Yes – tweets can be defamatory, and are not out of the reach of the law. Tweeps have had to pay very high damages to those that they have defamed even where the offending tweet has not been read by many people.
Can a re-tweet be defamatory?
Yes – in law, every ‘republication’ potentially creates a fresh claim. The idea that putting in your bio ‘RT doesn’t mean endorsement’ will probably not provide you with protection though the question has not been tested in the courts.
Am I safe if I ‘protect’ my tweets?
Not necessarily – you can defame someone even if you only send the information to a small number of people. It depends on who those people are, rather than how many there are of them. However, if only a very small number of people ever see your defamatory, the court may strike out any claim for defamation – it has happened!
Can twitter accounts be linked to individuals?
Yes. You may think you’re anonymous, but more often than you realise, you can be found – both technically and legally. Locating people via IP addresses etc is possible, and though the use of a legal mechanism called a ‘Norwich Pharmacal Order’ an information service provider such as Twitter can be ordered to provide what details it has about you.
When you look at all of this together, it means that people need to be careful what they tweet! I would have hoped that the last couple of weeks had made that quite clear! My thanks to Professor Alastair Mullis in the preparation of this blog post.