Legislating Defamation on Social Media

[This is a repost of a study paper I wrote for University at the end of last year, I wrote it much like I would a blog post but had to subject it to fiercely draconian editing to stay within the word limit so interested in how it compares to my normal stuff.]

1. INTRODUCTION

Social media has irrevocably altered the way in which people view and react to content. Whereas newspapers and television broadcasts are decidedly one-way and controlled by a privileged few, the Web uniquely inverts this. Sites like Twitter and YouTube have empowered individuals to broadcast their content globally and, in turn, allowed others to directly respond and fuel discussion.

As with any emerging technology, the result has been a plethora of unprecedented legal cases that existing law has, at times, struggled to adapt to. One of the most prominent examples of this is defamation cases being brought against people for statements they’ve made online.

2. LIBEL LAWS IN LEGACY MEDIA

The origin of what became modern libel law contains language distinctly rooted in the context of newspapers [1]. The prohibitive cost of printing at the time meant that only companies selling newspapers for profit could afford to widely disperse information, so they have very strong business interests in avoiding costly litigation. Furthermore, the nature of hiring trained, professional journalists meant those responsible for cases of libel could be directly held to account. Although, due to the editorial influence the newspaper has, liability is more often considered to be with the owner of the publication itself than the writer [2].

3. LIBEL LAWS IN SOCIAL MEDIA

Social media utterly democratised the ability to publish information to a large audience, from laconic micro-bloggers to “citizen journalists” presenting information as news.

At time of writing, the law for dealing with cases of defamation makes no distinction between a libellous statement made by a large mainstream newspaper and one made by a Twitter user with followers in the single-digits. In the eyes of the law, every single Twitter user is effectively a newspaper editor and thus subject to exactly the same regulation [3].

This approach is impractical for a number of reasons. Firstly, it fails to acknowledge that most social media users are regular people without any training or concept of media law. Secondly, it grossly overestimates the amount of damage to someone’s reputation the claims of most social media users can have, given the dilution effect caused by the volume of posts. Thirdly, it opens the floodgates for anyone to initiate expensive legal actions as merely a tool to censor even the mildest criticism.

4. LEGITIMATE ONLINE LIBEL

Of course, libel laws have an important purpose: to protect people from having their reputation damaged by the broadcast of misinformation. Since social media websites are undeniably a broadcast medium, there is no defensible argument for giving it complete exemption from defamation regulation. There are examples of libel laws being appropriately applied when someone’s reputation is damaged by a statement made online [4][5].

5. DISPROPORTIONATE LIABILITY

However, in these cases the plaintiff and the defendant were of similar professional status. The former had a reputation to protect and the latter had enough of an online influence to genuinely damage it. Conventional libel suits require the claimant to prove damage to their reputation [6], but this hasn’t prevented public figures threatening legal action against social media users, regardless of follower count [7].

In the UK, even “re-tweeting” (the Twitter equivalent of attributed quoting) can make you liable to legal action [7]. Whereas, in the US, Section 230 of the Communications Decency Act grants immunity to online users for quoting the aspersive claims of another [8].

It should also be acknowledged that not all social media users are equal. A defamatory statement from Stephen Fry (for example), with over 5 million followers, has a far greater likely proliferation than the vast majority of other Twitter users, with less than 50 [9].

The Crown Prosecution Service is currently developing interim guidelines that would take into account the “reach” of a social media user when deciding if offensive comment warrants conviction [10]. This could be applied to libel, since, in order to significantly damage someone’s reputation, the user making the claim must have a substantial “reach”. However, the interconnected nature of social networks means that a claim made by a low-reach user could be potentially proliferated amongst the entire network by others. As mentioned, each repetition is technically a separate libel, but the plaintiff will more likely pursue its originator. Nevertheless, acknowledgement that social media cannot be feasibly regulated by existing law is progress.

6. THE DEFAMATION BILL 2012

At time of writing, the Defamation Bill 2012 is being put through parliament to bring libel law more in line with the current socio-technological context [11][12]. Though the Bill may be modified in the coming weeks, its current form establishes that the offending comment must cause “serious harm” to the plaintiff’s reputation. However, what constitutes “serious harm” is ambiguous and subjective, therefore cannot be effectively proscribed in law. Furthermore, “serious harm” may be caused to reputation among low-reach social media users on a local level, but the context is not considered.

The Bill also introduces a “single publication rule” on published statements. Presently, though limitations exist on the actionable period from a libellous claim’s publication, the comment’s individual reprinting is considered an entirely new publication, thereby resetting the litigable clock [13]. The introduction of a single publication rule will ensure that attributed quoting of a mendacious statement is actionable only against the original speaker within the statute of limitation on its original publication. This effectively immunises people from facing legal action for retweeting.

7. CONCLUSION

Attempts to reform libel legislation to consider social media seem reluctant to acknowledge the many forms online libel can take. As we’ve seen, nebulous terms like “reach” still assume a strictly one-to-many relationship between speaker and audience. However, this is understandable in such a complex area. Social media evolves so rapidly that legislation too specific to its current incarnation will likely become outdated fast; whilst too vague legislation will be ineffective. A careful balance must be found, assuming one exists.

8. REFERENCES

[1] “Libel and Registration Act,” 1881. [Online]. Available: http://www.legislation.gov.uk/ukpga/Vict/44-45/60/enacted.
[Accessed 29 11 2012].

[2] A. Keen, “The Cult of Amateur: How Blogs, MySpace, YouTube and the Rest of Today’s User Generated Media are Killing Our Culture and Economy,” in Truth and Lies, Currency Press, 2007, p. 74.

[3] “Grayling warns Twitter users also face libel laws,” 14 11 2012. [Online]. Available: http://www.itv.com/news/update/2012-11-13/grayling-warns-twitter-users-also-face-libel-laws/. [Accessed 30 11 2012].

[4] “Ex-cricketer Chirs Carins wins £90,000 libel damages,” BBC News, 26 03 2012. [Online]. Available: http://www.bbc.co.uk/news/uk-17512027. [Accessed 30 11 2012].

[5] “Twitter libel: Caerphilly councillor pays rival £3000,” BBC News, 10 03 2011. [Online]. Available: http://www.bbc.co.uk/news/uk-wales-south-east-wales-12704955. [Accessed 29 11 2012].

[6] “Legal definition of ‘Libel’,” [Online]. Available: http://dictionary.law.com/Default.aspx?selected=1153. [Accessed 14 11 2012].

[7] A. Taylor, “Why A British Politician Is Planning To Sue ‘At Least’ 10,000 Twitter Users,” Business Insider, 19 11 2012. [Online]. Available: http://www.businessinsider.com/lord-mcalpine-sues-10000-twitter-users-2012-11. [Accessed 6 12 2012].

[8] “US Communications Decency Act,” Cornell University Law School, 1 2 1996. [Online]. Available: http://www.law.cornell.edu/uscode/text/47/230#c. [Accessed 5 12 2012].

[9] Beevolve, “An Exhaustive Study of Twitter Users Across the World,” 16 10 2012. [Online]. Available: http://www.beevolve.com/twitter-statistics/#b1. [Accessed 6 12 2012].

[10] C. Williams, “Unpopular Twitter accounts could escape prosecution for ‘grossly offensive’ tweets,” The Telegraph, 13 11 2012. [Online]. Available: http://www.telegraph.co.uk/technology/twitter/9675548/Unpopular-Twitter-accounts-could-escape-prosecution-for-grossly-offensive-tweets.html#. [Accessed 29 11 2012].

[11] “Defamation Bill 2012-13,” UK Parliament, 24 9 2012. [Online]. Available: http://services.parliament.uk/bills/2012-13/defamation.html.
[Accessed 6 12 2012].

[12] “Defamation Bill 2012-13 (content),” 21 9 2012. [Online]. Available: http://www.publications.parliament.uk/pa/bills/lbill/2012-2013/0041/20130041.pdf. [Accessed 6 12 2012].

[13] R. A. Leflar, “The Single Publication Rule,” Rocky Mountain Law Review (Issue 3), p. 263, April 1953.

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