By: Azaria Cheddie             19.08.2020

Social Media Publications, Libel and Defamation of Character

The right to freedom of expression is not absolute and must be exercised responsibly and in a manner which does not eviscerate the rights and freedoms of others. All citizens have an intrinsic right not to have his/her reputation destroyed by defamatory statements made and/or published about them to a third person or persons without legal justification.

What is defamation?

A defamatory statement is one which tends to lower a person in the estimation of right thinking members of society and so cause him to be shunned or avoided or to be exposed to hatred, contempt or ridicule or which may disparage him in his office, trade, calling, profession or business.

What is libel?

A libel is a defamatory statement made or conveyed by written or printed words or in some other permanent form, published of and concerning the claimant, to a person other than the claimant.[1]

What does the Claimant have to prove in a libel matter?

In order to sustain a defamation claim a plaintiff is required to prove:

1. that the impugned words were defamatory;

2. that the words in fact referred to the plaintiff; and

3. that the words were published, meaning that they were communicated to at least one person other than the plaintiff.[3]

Social Media Publications and Libel

Defamation via Facebook and other social networking sites has an unmatched global reach. Once a defendant chooses an online platform to defame another, the extent of the defamation would be widespread, unseen and its footprints permanent. There is no deletion or rectification which can be effected with respect to information uploaded to the World Wide Web.

Justice Seepersad in Claim No. CV 2016-02974 stated:

Anyone who elects to express views or opinions on such a forum stands in the shoes of a journalist and must be subjected to the standards of responsible journalism which govern traditional media.

‘Publication’ in the law of defamation refers to the communication of defamatory information in such a way that it is ‘made known to a third party’.[4]An individual who posts defamatory material on the internet is a publisher of that material if it is subsequently accessed and read by a third party.[5]

The Court in the above case concluded that:

Postings and information placed on social media sites such as Facebook, Twitter, Viber and Whatsapp has to be viewed as publications and the common law test in relation to libel will apply to same.

The test to prove publication

Proof of publication is necessary in order to establish liability for defamation[6].

Publication has two components:

1. an act that makes the defamatory information available to a third party in a comprehensible form; and

2. the receipt of the information by a third party in such a way that it is understood.

Furthermore, the publication must be intentional in order to sustain a claim for defamation. Only deliberate acts, can lead to liability for defamation.”[7]

Challenges exist with respect to the ability to prove the source of publication among other things, however:

Proof of ownership of an account in the absence of evidence as to the IP address of the user, may be established where there is requisite evidence to be adduced so as to lead the Court to hold on a balance of probabilities that the account in issue belongs to or was controlled by the purported user/owner.

Instances of security breaches or unauthorized use

Should the accountholder reasonably be expected to know what was published on his/her page?

The Court in the above case was of the view that a social media user should be held accountable for defamatory statements posted on his/her account, where:

1. The owner of the account posted the defamatory information himself/herself;

2. The owner of the account, expressly authorised and/or enabled third parties, without the imposition of restrictions, to use the account and the evidence adduced would give rise to the reasonable inference that the owner intended to take responsibility for the posts effected by such third parties.

In the instant case, the defamatory information was posted by an anonymous person or by persons who acted outside the scope of any authorisation given by the owner of the account as it relates to its use and the owner of the account, when made aware of the defamatory content, failed to have the content removed, edited or deleted, as soon as it was reasonably practicable for him/her to so do.

Social media accounts must be jealously guarded, just like a bank account and access to same should be restricted, as it is a forum where views expressed will normally be attributed to the owner of the account.

Private Profiles

Posts emanating from a private account occupy a public space and the content of these posts will be subject to public opinion and scrutiny as will the persons to whom the posts refer. Inevitably, if what the posts contain are malicious falsehoods, then those falsehoods can translate to real-world damage to someone’s reputation.

Damages

The general rule is that in claims for defamation, damages are assessed on a compensatory basis which includes special damages and aggravated damages. Compensatory damages are intended to compensate the Claimant for injury to his reputation and injury to his feelings and to vindicate him to the public. Where the Claimant is a non-natural person (eg Corporate Claimants) it will be entitled to damages upon proof of injury to its goodwill. Nominal damages should be awarded if there is no evidence that actual loss or damage was suffered.

In order to establish a right to damages the Claimant need only prove that the defamatory statement has been published to one person. In such a case the damages will be far less than where the libel is published by a national newspaper or television station.[8].

Usually, an assessing court would consider this threefold purpose in the context of certain factors – the gravity of the allegation; the scale of publication; the extent to which the readers believed the words to be true; any impact on the claimant’s reputation or career, feelings and any aggravating or mitigating factors.

Interesting Cases

Lasana Liburn v Gordon Pierre where in a series of defamatory statements on Facebook, there was extensive tagging of prominent personalities and friends to ensure maximum public access. The claimant, a prominent sports was defamed as an “undercover buller”, “paedophile” and wife beater, which affected his business and personal reputation and the court awarded $450,000.00 as general damages inclusive of aggravated.

Anand Ramlogan v Jack Austin Warner where at a public meeting· defamatory statements were made alleging corruption and thievery by the claimant, an attorney of twenty five years call, a senior counsel and then Attorney General of Trinidad and Tobago. The court awarded $600,000.00 inclusive of aggravated damages and $200,000.00 in exemplary damages.

Andrew Gabriel v Phillip Edward Alexander where for several defamatory· publications, some on Facebook, the court awarded $525,000.00 as general damages and $250,000.00 as aggravated damages. The court used the continuing defamatory publications after the claim was filed as relevant a factor to assess the defendant’s state of mind and general conduct to make its finding of malice.

Know your rights and think before you post.

For more information see:

Claim No. CV 2016-02974 : http://webopac.ttlawcourts.org/LibraryJud/Judgments/HC/seepersad/2016/cv_16_02974DD05feb2018.pdf

the Libel and Defamation Act, Chapter 11:16

Other sources:

[1] Halsbury’s Laws of England Volume 32(2012)

[2] Gatley on Libel and Slander, Twelfth Edition, Paragraph 3.6

[3] Canadian case of Grant and Another v Torstar Corp and Others 2009 SCC 61 Mc Lachlin CJ at paragraph 28

[4] Gaskin v Retail

[5] Halsbury’s (supra) at paragraph 566 explains:

[6] The Court in Crookes v Newton 2012 1 LRC 237 at paragraph 55

[7] Deschamps J in Crookes

[8] Defamation, Law, Procedure and Practice (supra) at paragraph 20-06

This post does not constitute or provide legal advice neither does it establish an attorney-client relationship. If you need legal advice, please contact an attorney directly.

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