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Don’t click now and think later

12 August 2013

In recent years, social media sites have provided the general public with a platform for sharing news and views on all sorts of matters. Naturally, some of the comments made have been considered inappropriate by other users and the courts have had to respond.

This has resulted in some users being forced to make public apologies, pay hefty fines, and, even, spend time in prison.

A prime example of such legal action began in November 2012, when BBC Newsnight ran a report linking a former Conservative MP with the Jimmy Savile scandal. Newsnight did not name the MP and this led to a guessing game on Twitter as to the accused’s identity, in which Lord McAlpine was named and shamed. The most prominent tweeter was Sally Bercow, wife of the House of Commons speaker, who posted “Why is Lord McAlpine trending? *innocent face*”. Lord McAlpine brought proceedings for libel against Mrs Bercow and the High Court ruled that her tweet was seriously defamatory. Mrs Bercow commented that this “should be seen as a warning to all social media users”.

The law is clear when it comes to social media and defamation. A tweet may be deemed libellous if it damages a person’s reputation in the estimation of right thinking members of society. No distinction is made between posting on Twitter (or re-tweeting) and publishing a report in a newspaper, meaning that either can result in court proceedings. The best defence is being able to prove that the content of the tweet is true, or, failing that, that the tweet constitutes fair comment, in that it is an honest belief based on established facts. However, the only way to ensure that a social media comment does not lead to legal action, is to think before you click, rather than tweet or re-tweet idle gossip.

But there may be some relief for Twitter users on its way, as the Defamation Bill (due to become law in the coming months) provides that in future, claimants in libel actions must show that any comments made caused substantial harm to their reputation.

Matthew heads our employment law team. He handles the full range of contentious and non-contentious employment law issues for clients which include multi-national companies, owner-managed businesses and not-for-profit organisations. He is recommended by independent legal directory Chambers and Partners in which he has been described by a client as “responsive, commercial, understands where employers are coming from and gets right to the point, with meaningful and practical advice.”

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Matthew Clayton MA LLM (Cantab), CIPP/E
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