This article will briefly discuss some of the legal grounds on which a business or individual can challenge online content, particularly on social media. If you find objectionable content online, you need to consider what legal reason you may have to object. You may have a civil cause for action such as:
Statements made online often make claims and allegations that are potentially damaging to the individual or business. If the statement adversely affects a persons or organisations reputation, then that person or organisation may have a cause of action under the law of defamation. To prove that a statement is defamatory it must be shown that the content:
- Was published within the previous twelve months.
- Lowers the subject in the mind of right-thinking members of society.
- Has caused or is likely to cause serious harm.
- Is not the truth or an honest opinion, or benefit from any other established defence.
This tort provides a similar but separate cause of action to defamation. It covers situations where the author of untrue and damaging content has published it online with an improper motive causing the subject to suffer financial loss. Unlike defamation the claimant must show that they have suffered financial loss which includes loss of trade or other damaged that can be measured financially.
( Note: Section 1 of the Defamation Act states that with regards to a ‘body that trades for profit’, it is not ‘serious harm unless it has caused or is likely to cause the body serious financial loss’)
When someone is subject to conduct that causes them harm, distress or alarm they may have a cause of action under the law of harassment. This can result in a civil claim but also has the potential to be criminal. The Protection from Harassment Act 1997 prohibits two types of harassment. Section 1 prevents a person from carrying out a ‘course of conduct’ that amounts to harassment if that person knows or should know that the conduct amounts to harassment. A ‘course of conduct’ needs to be at least two instances which must be in sequence. Section 1(1A) prohibits a person pursuing a course of conduct that involves harassment of two or more persons with the intention of persuading any person not to do something they are entitled or required to do.
Intellectual property infringement:
A social media post may misuse a third party’s intellectual property. Infringements include:
- Publications that amount to copyright infringement because a substantial part of the copyright work has been copied.
- Without consent, content that includes an identical or confusingly similar trade mark or brand of a third party.
The unauthorised use online of an unregistered brand can be unlawful when a brand has an established reputation in the United Kingdom (UK). If consumers are misled into believing that a website, social media page, post, or blog is that of a brand owner or is authorised or endorsed by them when it is not, the brand owner may be able to bring an action of passing off if they suffer damage. An action of passing off prevents a third party from trading and profiting from the hard work and good will held by a brand.
Breach of confidence:
Publishing information online that is confidential is likely to be a breach of common law confidence. The owner of the confidential information can take action. An example of how serious this can be is the publications on Wikileaks. Full remedies from unauthorised publications are often not possible as the damage has already been done but the claimant can seek:
- An injunction to stop further publications of the confidential material.
- An order to remove the content from the internet.
- Damages by the means of compensation for the loss caused as a result of publication.
Misuse of private information:
There is no specific law of privacy in the UK. However, case law has asserted that the misuse of private information now covers two aspects of the right to privacy which are:
- The actual misuse of private information. Misuse could be publication.
- Preventing intrusion into an individual’s right to privacy.
The General Data Protection Regulations and the Data Protection Act 2018 puts obligations on those who process personal data and provides protection for the individuals the personal data is about. The obligations include complying with data protection principles such as the lawful, fair, and transparent collection of personal data and making sure that data is collected for specified purposes, limited to what is necessary.
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