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Helen Smith, Associate, and John Bennett, Partner, DWF Fishburns
Social media marketing is an essential way for businesses to increase brand awareness, initiate marketing campaigns and to monitor customer service. As such, social media outlets such as Twitter, Facebook, YouTube, LinkedIn and website blogs provide businesses with many opportunities; however, they can also present risks. This article seeks to highlight some of these potential risks and suggests how they can be managed.
In recent months Twitter has been the subject of much media attention. For example, Lord McAlpine has filed a High Court libel claim against Sally Bercow, the wife of the House of Commons speaker, to seek damages over an allegedly libellous "tweet" made by Ms Bercow on 4 November 2012. Moreover on 31 October 2012, the Court of Appeal upheld a High Court decision awarding Chris Cairns, a well-known international cricketer, damages in respect of a message published on Twitter by Mr Lalit Modi, the former Chairman and Commissioner of the Indian Premier League.
The Court of Appeal made the point that a message on Twitter can "go viral more widely and quickly than ever before". A tweet on Twitter is capable of being libellous and, if proven to be so, can result in a Claimant being awarded damages. So to what extent can a statement made on Twitter, on any other social media outlet or otherwise be regarded as libellous? First, the statement has to be defamatory, i.e. a statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business. Secondly, the statement must be published to a third person other than the Claimant. Publication means the communication of defamatory material and in the context of social media, publication can be by electronic means through a posting on Twitter for example. A publication can also be the repetition or further publication of a defamatory statement, so a "re-tweet" can similarly fall into this category and in the Cairns case the Court of Appeal mentioned that numerous republications can be taken into account when assessing damages.
There are of course defences that the Defendant can rely on. For example, if the Defendant can show that the statement was true, or that it was "fair comment" on a matter of public interest (and not motivated by malice) then this may afford a defence. Parliament is currently debating a Defamation Bill which, on 25 February 2013, went through its Third Reading in the House of Lords and is due to go back to the House of Commons. One of the proposals in the Bill is to provide a defence for website operators for defamation claims made against them as a result of defamatory statements made by their users, so long as the website operator can show that it did not post the statement on the website. However, the Bill states that if the Claimant gives the website operator a notice of complaint and the website operator fails to respond to that notice, the website operator's defence may be defeated. If this proposal becomes law, it will mean that companies must monitor regularly their websites and consider and respond promptly to any complaints received regarding the content of their website and/or website postings.
The Bill may change the law in other ways. For example, one proposed change is the introduction of a Defamation Recognition Commission. It is proposed that this Commission will certify other bodies such as the Independent Regulatory Board which will provide an arbitration service. The aim is to encourage parties to resolve defamation disputes early, through arbitration, before embarking on costly Court proceedings. The proposed change has created some controversy as it has been suggested that the creation of new these new bodies may, in essence, grow to become statutory press regulators. It remains to be seen whether the Bill, in the proposed form, will become law in the near future.
The above highlights that it is essential that businesses are aware of these risks and take steps to manage these risks. For example, if a business has a Twitter account and is sending out tweets in the name of the company, businesses should be careful who is given access to their Twitter account and appropriate safeguards should be implemented to monitor tweets before they are published. Similarly, if a company is posting blogs on a website, similar caution should be taken. Moreover, insurance against the risks of being the subject of a claim for defamation is clearly a prudent course to take, and indeed the Parliamentary debates indicate an assumption on the part of the law-makers that insurance is the wise option.
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