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Defamation Age: libel, social media and you

Andy Warhol

Andy Warhol, who predicted everyone will defame us for 15 minutes (or something)

Ah, the perils of libel if you’re posting on social media. Here’s a subject I teach small businesses – and not by putting them through the ordeal of being sued for defamation.
A Manx “news” Facebook page may have to settle out of court after defaming a couple of government workers, to avoid an embarrassing day in court.

Before I begin, let’s take a quick look at defamation. People often shout about “freedom of speech” but in fact there’s no such thing in UK or Manx law. Common law, however, does recognise defamation – unjustified damage to the reputation of an individual or organisation.
It’s a topic I’m intimately acquainted with (as are most journalists). I vividly remember my first libel case, involving a dead budgie. But that’s a story to dine out on another time.
What’s this all about, then?

Here’s the Isle of Man Newspapers story: Government department’s ‘£100,000’ dispute with company behind Tom Jones gig

The paragraph to look for is:

Newspaper clipping

“What steps we can take”… sounds like a writ to me!

Meanwhile on Facebook, Isle of Man News (no connection to the papers) published a post claiming to have an inside scoop about a concert run by the government that made a loss.
Here’s the bit that I found breathtakingly risky:

Legally actionable? Read on...

Legally actionable? Read on…

So what do you have to prove to a court in a libel case here on the Isle of Man? We don’t have the UK’s Defamation Act 2013, so it’s the old-fashioned libel law I grew up on.

The unholy trinity of libel

  • First, the alleged libel has to be published. That’s easy to prove: here it is on the internet.
  • Secondly, it identifies those being defamed. I’ve blocked out their names here because every repetition of a libel is a fresh libel. You can be sued for repeating it (notice Isle of Man Newspapers avoided alleging anybody is “incompetent”?). But trust me, naming them and the place they work is more than enough to prove identification in court.
  • Third, and last, you have to show it’s defamatory. Saying you couldn’t believe their levels of incompetence “tends to disparage them in their trade or profession”, a classic definition of libel.
Let’s also be clear: just because you’re quoting somebody else saying something doesn’t shift the liability. Nor does using the word “allegedly”, despite Have I Got News For You. “Someone said John Whatsit is a paedophile” or “John Whatsit is a paedophile, allegedly” is just as damaging as “John Whatsit is a paedophile”. You are the publisher, you’re responsible for your publication.

“Source” for the noose

Worse, the vital quote comes from “a source”. That anonymous source should worry, too. Because if Isle of Man News wants to defend the case, they’ll need to drag that source into court to give evidence. At the very least, it will have to produce the email (with its address) as evidence in court.
So how to defend it?
The preferred libel defence is always justification – it’s true and you can prove every word of it. However, proving somebody is incompetent is going to be very difficult in court – someone having an off day isn’t incompetent, necessarily. Is there a clear pattern of incompetence?
As an aside, I’ve seen newspapers successfully sued for calling someone who admitted burglary in court “a burglar”… because that implies burglary is what they do for a living. Reporters have to tread carefully!
To add to the woes, this story is uncertain of itself to begin with: it’s based on an email which “claims” this and “alleges” that. Not exactly strong enough to defend through truth.
Perhaps “fair comment” (“honest opinion” as it’s now known)? Well, that’s a defence that relies on you making comment on honestly-held beliefs in the absence of malice.
Think about what that means for a moment. “Honestly-held beliefs”. Does the writer honestly believe the two civil servants were unbelievably incompetent? Perhaps.
But is there an absence of malice?

Sue are you?

Well, let’s consider what Isle of Man News turns out to be.
The page has an awful lot of Facebook likes – almost 7,000 – and yet it’s attracted a lot of one-star reviews. Some surprising Facebook friends of mine have liked it, although I suspect they don’t remember doing so.
And here’s why. In 2013, a company called RockingMann Festivals was set up. It tried to organise a festival in Noble’s Park in Douglas in association with MTV, featuring acts such as Paloma Faith and Primal Scream. But then it hit difficulties, and controversially gave preferential treatment to government staff. It then collapsed before the event could take place, and nobody got any of their ticket money back.
Guess who runs the Isle of Man News page?
Here’s their “Page Info” section. Check the long description:

Isle of Man News? Or Rockingmann Festival?

Isle of Man News? Or Rockingmann Festival?

A reasonable person might conclude they reused the festival’s Facebook page (with its thousands of likes) to set up “Isle of Man News”.

Now, if you want to use the fair comment defence in libel, turning out to be a rival promoter with good reason to dislike the government who’s now running a Facebook page actively going after the government-run Villa/Gaiety complex… well, let’s just say that “absence of malice” defence melts like snow under a blowtorch.

Catastrophe “writ” large

You’d think this was unusual, but actually I see an awful lot of content posted – even to corporate pages – that skirt the edges of defamation. It’s increasingly common on Facebook, where people seem to think they’re magically protected from law.
Here’s the thing: you get no legal aid for libel. You’ll be paying the advocate out of your own pocket. At a couple of hundred quid an hour. So if the person suing has deeper pockets, you’re in real trouble.
Most media businesses have legal insurance that covers libel – but I’m willing to bet plenty of businesses with a Facebook page don’t. That can make the blow doubly hard. Especially when you consider the damages assigned in a libel case are effectively unlimited and seem, at times, completely random. They’re very rarely anything to do with actual damage suffered by the plaintiff.
Imagine that one Facebook post costing your company £250,000 plus the legal costs of both sides of the case?
That’s exactly why these things are usually settled out of court. There’s an apology published or the page is taken down (plaintiffs rarely say “Just remove that post and let’s call it quits” – why should they if they can win substantial amounts of cash?) and then some money changes hands.
But even that is crushingly expensive – and do you really want a grovelling apology to grace your company’s Facebook page?

To find out more about the social media training Chips Cheese Gravy Media offers to small businesses on the Isle of Man – and yes, we’ll show you how to avoid libelling anybody! – click here.
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