Having a presence on social media as a business can be valuable. It can increase your audience, boost your brand, and give the ability to communicate with potential customers instantly. However, social media does also create risks such as defamation. Material posted on social networking sites such as Twitter and Facebook can be malicious and inaccurate. The ability to be anonymous can encourage some users to behave in a manner that they would not use in other forms of communication.
The common law test for defamation provided by Sim v Stretch: ‘would the words tend to lower the claimant in the estimation of right-thinking members of society generally’. Additionally, a statement is not defamatory as a threshold matter unless its publication has caused or is likely to cause serious harm to the reputation of a claimant who is a natural person. When a claimant is a body that trades for profit, evidence of serious financial loss or its likelihood is needed.
The main components of a defamation claim are:
- A statement has been published to at least one third party
- The statement is defamatory
- The statement refers to an identifiable legal person
- There is no common law or other statutory defence such as, it is the truth, an honest opinion, absolute privilege, or qualified privilege
Although it can be questionable at times, traditional print media tends to be created by professional journalists and it is subject to fact checking and legal review. On social media there is often no controls like that of traditional media. Social media posts are often self-published by private individuals. Anonymous speech on social media has provided individuals the opportunity to vent their opinions, grievances, and attack individuals or businesses.
Liability for material posted on social media is not always restricted to the author. In some circumstances’ liability can extend to a website operator, an employer, or an internet service provider.
An individual who controls or edits a social media page may become liable if they are notified of a libel on their page and then fail to remove it.
An internet service provider will not usually be liable for the publication of defamatory material provided that the original author is identifiable, or they can be identified. If the internet service provider performs no more than a passive role, then they will not usually be classed as the publisher and therefore liable.
An employer can be liable for the actions of its employees in the course of their employment, known as vicarious liability. This means the use of social media by employees can create a risk. Individuals may identify themselves as an employee of a certain business on their profile. Their personal views may then be linked to their employer or they may share their grievances about their employer online in a defamatory manner. They may even complain about colleagues, clients, or business associates. Sometimes a false profile may be used to voice their grievances. If the defamatory material is posted during working hours, employers may be vicariously liable. As a defence, employers can show that the employee was not acting in the course of his or her employment. Vital to this defence is to show that the employer has an appropriate IT policy which includes acceptable use of the internet and social media.
To minimise the risk of liability, employers should consider:
- Applying an IT policy that covers the use of social media or a separate social media policy. It should cover acceptable use of social media in and out of work.
- Give employees training and guidance so they are aware of the possible consequences of their use of social media. If it is desirable for employees to use social media for marketing, employers should ensure there is clear guidelines on how social media is to be used.
The risk of being victim to defamatory statements could come from disgruntled employees or ex-employees. It might be a disgruntled customer or someone you have upset, that now aims to punish you or your business. You should also be aware of the possibility of you becoming liable for the defamatory statements of your employees.
At Lawdit we can assist you if your business is being damaged online by defamation or something similar so please feel free to phone us for a conversation.
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