Social media and defamation: when could you be accused of crossing the line?

Generally, social media has been seen as the Wild, Wild West, where one can do or say almost anything without repercussion. However, with a successful court case for defamation being made in the Caribbean, could this be a sign of things to come?

 

It may have come as a bit of a surprise, but as documented in the news roundup published on Monday, 12 February, a judge in Trinidad and Tobago upheld a claim of defamation made on Facebook (Source:  Daily Express).  Across the Caribbean region and for the most part, we might have heard of someone threatening to take someone else to court on the grounds of libel or defamation on social media. However often, that seemed to have been just talk on the part of the accuser, or the other person (the accused) took steps to de-escalate the situation.

As a result, there have been relatively few court cases on the grounds of defamation in social media in the region; and to date, even fewer that have been successful – until now. It thus means that the recent decision in Trinidad and Tobago could become a landmark case for libel, and establish a precedent, which can be applied and referenced across the entire Caribbean.

Before we get ahead of ourselves, what is defamation?

A simple and useful definition of defamation is as follows:

Any intentional false communication, either written or spoken, that harms a person’s reputation; decreases the respect, regard, or confidence in which a person is held; or induces disparaging, hostile, or disagreeable opinions or feelings against a person.

Defamation may be a criminal or civil charge. It encompasses both written statements, known as libel, and spoken statements, called slander.

In Caribbean countries that have defamation laws, in most instances, they were drafted decades ago, and so cannot be extended to cover a criminal charge of defamation via the Internet, and more specifically on social media. The recent Trinidad and Tobago case was a civil case, that is where an individual (and not the State) takes legal action against another.

Why might we be especially susceptible to defamation on social media?

Generally, and for a successful claim of defamation, the plaintiff must prove the following four elements:

  1. The statements made are defamatory
  2. The statements made referred to the plaintiff
  3. The statements were made by the defendant
  4. The statements were published, that is they were communicated to at least one person other than the plaintiff.

To a considerable degree, social media – be it Facebook, Twitter, Instagram, to name a few – fosters self-expression and to express ourselves freely and casually. We are each encouraged to develop our own network of friends and followers, and within that group to share our thoughts, experiences, etc. Further, unlike other media, such as television, newspaper and radio, few controls have been established to regulate social media platforms and the content its users generate. Hence, it can be easily assumed that social media operates free from rules and norms that typically apply to traditional media, which in turn cultivates a false sense of security social media users.

However, due to the growing power of social media, and the reliance that it being placed on it – not only by its users, but also by businesses, institutions and people in authority – increasingly, users will find themselves being taken to task for their posts and utterances on those platforms. Further, the potential impact of those posts and utterances must also be emphasized, especially when users have hundreds, thousands, or even tens of thousands of friends or followers on their networks.

Additionally, we should not underestimate people’s need to be seen to have an impact on social media, through posts or tweets that get widely shared and have a lot of engagement. People love to vent of social media, resulting in businesses monitoring the more popular channels for dissatisfied customers, and to manage the potential damage to their reputation. However also, a careless or flippant remark on social media meant to harm someone’s reputation, or to lower people’s regard of a particular person, is not only broadcast through a user’s social network, but also through those of his/her followers that decide to share the post or tweet, thereby multiplying the impact and damage.

Some parting thoughts

In summary, as more controls get placed on social media, countries and their judiciaries will also become more emboldened to require social media users to take greater responsibility for their utterances online and through those channels. The Trinidad and Tobago libel case could be the lightning rod for such a paradigm shift in the Caribbean. The analysis of the published in the Daily Express, along with Justice Seepersad’s reasoning should be essential reading not only for all of us as social media users, but also for those who manage groups and corporate pages, and are in a position to moderate the comments of others.

 

Image credit:  GDJ (Pixabay)

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