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Defamation on social media

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When defamation on social media occurs the laws around libel apply but there will be some unique challenges to overcome. Such as, where to sue as social media platforms are global, can a platform be sued as the publisher, and how to reveal the identity of someone making defamatory statements whilst using an alias or fictitious name.

As social media is a worldwide accessed service, where should a claim be brought if the author or publisher is outside of the UK, EU, or a country that is part of the Lugano Convention. Section 9 of the Defamation Act 2013 covers this scenario. It states that for ‘action against a person not domiciled in the UK or a member state,’ the court must be ‘satisfied that of all places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring action.’  The court must also consider any statement which ‘conveys the same, or substantially the same’ as the statement complained of published elsewhere. The courts may decide to hear a case if the defamatory material was most prominent in England and Wales and/or the claimant has a reputation in England and Wales that has been damaged by the defamatory statement. Godfrey v Demon Internet Ltd [2001] has shown that the tort of defamation is committed in England and Wales when it is downloaded here, even when it was uploaded in a different territory. Loutchansky v Times Newspaper Ltd asserted that material read from a website constituted publication, at the time and place of downloading.

A social media platform can only be sued as the publisher in certain circumstances. Liability could extend to a host platform if they have direct editorial control over the user generated content. Tamiz v Google Inc [2013] has asserted that a host platform could become liable for defamatory statements, sometime after being notified of the complaint in respect of the statement. However, the case against Google also showed that a platform can prevent the serious damage required for a successful claim, by promptly removing the statements complained of.

If the claimant does not know the real identity of those responsible for the alleged defamatory statement due to the use of an alias, then the claimant could apply for a Norwich Pharmacal Order (NPO). A NPO can compel a third party such as, a social media platform, to disclose documents that will identify the potential defendant. This could be the IP addresses of the user. The order was originally established in Norwich Pharmacal v Customs and Excise Commissioners [1974]. The House of Lords concluded that there can be a need, for the court to be able to, force a third party to provide certain information.

The use of NPO’s has increased with the use of social media. Many people believe that a false account will provide them with anonymity, whilst committing defamation and harassment.

Lightman J in Mitsui and Co Ltd v Nexen Petroleum Ltd [2005] established three requirements needed for a NPO. A wrong must have been, or arguably been committed by the alleged wrongdoer, therefore, are the statements defamatory. The claimant needs to be seeking some sought of redress against the wrongdoer. If the information is not necessary or the intended use is improper, a NPO will not be approved. The next requirement is that the information must be needed to be able to bring action against the alleged defendant.  The court will be hesitant to approve the NPO if the information can be attained another way. The claimant would have to show that any other methods are not viable. The final requirement is that the third party must be mixed-up in the wrongdoing, to such an extent that they are not just a witness.

If you need any advice with online defamation, then please contact the Lawdit team.

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