Adam Rendle and Niri Shan, media lawyers, Taylor Wessing LLP
Adam Rendle and Niri Shan, media lawyers, Taylor Wessing LLP
A view from Niri Shan and Adam Rendle

Think BR: Defamation on Twitter - how to avoid the legal risks

What responsibilities do marketers have when posting to Twitter, ask Niri Shan and Adam Rendle, media lawyers, Taylor Wessing LLP.

The action Lord McAlpine is reportedly taking against Twitter users for falsely suggesting he was involved in child sex abuse reminds us all about the English legal consequences for false and defamatory tweets and other statements on social media. 

Twitter users and anyone else using social media are just as responsible for material which harms the reputation of others (ie, defames them) as the traditional and mainstream press. The message is clear: if you should not say something in a national newspaper or on the sofa of a news show, you should not say it on Twitter. 

A false and defamatory statement posted on Twitter or in a blog is not immune from legal action. If a tweet or blog post is defamatory, untrue and cannot be defended, the person who wrote the tweet or blog can be liable for defamation and for substantial damages. 

When marketers post material online, they act as publishers and their publications are subject to the same laws and are as legally responsible as those of professional publishers, such as newspapers or broadcasters.

A retweet of a false and defamatory tweet is also not immune from legal action. Just as the tweeter is liable if the tweet is defamatory, untrue and cannot be defended, the retweeter could also be liable. A retweet spreads the allegation further, as if the retweeter has made the statement itself. The person who retweets is responsible for the content of that retweet.

Someone cannot avoid liability by saying that they were simply repeating a statement made by someone else because it is already in the public domain. The courts consider each tweet to be a libel, and the more often it is repeated, the more damage it can do and the more libel actions it may provoke.

In legal terms, when it comes to proving the truth of the allegation (which is a defence to a defamation claim), it is insufficient to point to the fact that somebody has been accurately quoted - the publisher has to prove the substance of the underlying allegation. Defending a comment on the grounds of public interest (which is another defence) will only succeed if the defendant has engaged in responsible journalism, which is not demonstrated by simply repeating another person's words.

If the subject of the tweet can demonstrate that the tweet has harmed his reputation (ie, is defamatory), the tweeter will be on the back foot. The onus then shifts to the tweeter to prove that the allegation in the tweet is true (or that another defence applies); the subject does not have to prove that the allegation is untrue. For example, allegations that someone is a child sex abuser are obviously defamatory; it then falls to the maker of those allegations to prove that the allegations are true.

Simply inviting comments or starting a conversation on social media does not mean that there is no liability for those comments or conversations. If it is likely that the invitation to make comments will result in defamatory statements, the person making the invitation could be liable for the statements that follow. Someone asking on a blog: "Do you think Mr X is a terrorist?" may well be instigating, and therefore responsible for, any defamatory responses which are likely to and predictably do follow.

Another thing to remember is that, if a tweet about someone based in England is sent from overseas, it is not outside the reach of the English courts. English courts are able to deal with any legal wrong (such as defamation) that happens in England. For defamation, it is the place of publication or access that matters, not where it was made. 

Damages for libel on Twitter would not necessarily be small because it is 'just' a tweet. Tweeters can be exposed to claims for damages approaching and exceeding six figures, depending on the extent of publication and any other mitigating factors (such as a swift public apology). In England's first libel case involving Twitter, New Zealand cricketer Chris Cairns was awarded £90,000 in damages after he was wrongly accused on Twitter of match-fixing by Lalit Modi, the former chairman of the Indian Premier League.  

In explaining his ruling, the Lord Chief Justice said that as a consequence of modern technology and communication systems, stories had the capacity to go viral more widely and more quickly than ever before. This percolation phenomenon could be taken into account when awarding damages.

It is an important reminder that online and social media content can have significant legal consequences in the real world; the ease of communicating through Twitter, Facebook, etc, does not relax the legal responsibilities for and consequences of those communications.

Niri Shan (@Nirishan) and Adam Rendle (@adramIP) media lawyers, Taylor Wessing LLP