Defamation law and social media

Defamation law and social media posts

It is well established that statements made by someone on social media (whether on X (formerly Twitter), Facebook, TikTok, Instagram etc.) are subject to the same libel laws as statements published elsewhere. A claimant must show that the words complained of have been published by the defendant and that they are defamatory of the claimant within the meaning of Section 1(1) of the Defamation Act 2013 (discussed below). The application by the courts of defamation law to social media posts has evolved, however, into a distinct branch of defamation law. Its distinctive features are explained below.

Publication requirement

The ‘publication requirement’ under defamation law requires that the words complained of have been published by the defendant, i.e. communicated to a person other than the claimant. As discussed below, in social media cases generally it is the extent (rather than the fact) of publication which is contested between the parties.

Ascertaining meaning

X (formerly Twitter) has proven to be the most fertile ground amongst social media platforms for defamation actions under English law. Offending tweets (the verb to ‘to tweet’ appears to have survived the ‘X’ rebrand) are often published impulsively within a fast moving ‘conversational’ environment. They frequently include personal attacks, sometimes vicious in nature and filled with hyperbole. In these circumstances, how do the courts approach ascertainment of meaning?

In Monroe v. Hopkins [2017] EWHC 433 (QB) (“Monroe”). Mr. Justice Warby (now Lord Justice Warby) commented that “it would be wrong to engage in elaborate analysis of a 140 character tweet” and that “an impressionistic approach” should be adopted. However, subsequent case law suggests that the precise meaning to be given to tweets remains the subject of extensive legal argument. The relaxing by X of its 140 character tweet limit for some users has increased this trend.

Serious harm requirement

Section 1(1) of the Defamation Act 2013 introduced the ‘serious harm’ test for actions for defamation in an effort by Parliament to eliminate cases of a trivial nature. Under this test the burden of proof falls on an individual claimant to establish, on the balance of probabilities, that the statement complained of has actually caused ‘serious harm’, or is likely to cause ‘serious harm’ to that person’s reputation. For a body that trades for profit, harm is not ‘serious harm’ unless it has caused or is likely to cause the body ‘serious financial loss’.

Historically in a libel action, a claimant was required to prove that the words complained of carried a ‘defamatory tendencyat common law’. This question was assessed by determining the meaning which the words conveyed to an ordinary reasonable reader and whether that meaning lowered a person in the estimation of “right-thinking people generally” or as Warby J. put it in Monroe: “…whether the behaviour or views that the offending statement attributed to a claimant are contrary to common, shared values of our society”.

In Lascaux v Independent Print Ltd & another [2019] UKSC 27 (“Lascaux“), the UK Supreme Court held that, following the enactment of Section 1(1) of the Defamation Act 2013,  words which fail the ‘serious harm’ test should not be regarded as ‘defamatory’. It also made clear that whether the ‘serious harm’ test is met does not depend only ‘on the meaning of the words and their inherent tendency to damage the claimant’s reputation’. Instead, a claimant must establish that, on the balance of probabilities, actual harm has been suffered, or that a likelihood of such serious harm occurring may be inferred based on relevant factors such as the gravity of the allegations and the extent of the publication.

‘Serious harm’ and social media posts

In Monroe Warby J. addressed the application of the ‘serious harm’ test to social media posts. He observed that injury to feelings on the part of an individual claimant is not sufficient to establish ‘serious harm’ but that there is no requirement to establish ‘grave reputational harm’. Whilst the extent of publication is highly relevant Warby J. observed that it is not merely ‘a numbers game’.

The High Court judgment delivered in January this year by Mrs Justice Collins Rice in Blake & Seymour v Fox [2024] EWHC 146 (KB) (“Blake & Seymour”), a case involving actor turned politician, Laurence Fox, provided further guidance on the subject. Collins Rice J. adopted an ‘overall evaluative approach… of the real-life-impact of the tweets complained of’ taking account of the facts and evidence presented both as to the ‘inherent gravity’ of the allegations and also the ‘extent of publication’. It is a highly fact-sensitive test.

Collins Rice J. explained that a court should consider both the initial audience (e.g. a defendant’s X (Twitter) following and the offending tweet’s number of ‘views’ (X (Twitter) now publishes statistics on view counts for its postings), as well as evidence given of onward dissemination and coverage of the post complained of in national print and online news media.The overall profile of the defendant is also relevant. The tweets of a well-known public figure are more likely to reach ‘a mass audience’ in contrast to those which Collins Rice J. described as “ordinary run of Twitter utterances (swiftly read and swiftly buried in the constant avalanche of new comment)”.   

Deleting tweets 

Warby J. observed in Monroe that the ‘transience’ of a tweet does not necessarily lessen its impact on the audience which views it. In Blake & Seymour, Collins Rice J. further observed that the propensity for a controversial tweet to be retweeted, especially in the minutes and hours following its posting, means that it is liable to stay in circulation even after the original tweet has been removed. Rapid deletion of a controversial tweet therefore appears not to offer any fail-safe protection against a potential defamation claim. Given the costs involved with defending a defamation claim, the adage ‘think before you tweet’ remains sound advice.

Remedies

In (“Lascaux“) the UK Supreme Court held that ‘serious harm’ is a ‘threshold test’. The full extent of harm caused to a claimant is considered at the remedies stage, only once a successful claim has been established. Standard remedies are all available in social media defamation cases including injunctive relief, damages and/or recovery of legal costs.

The Birketts view 

The conduct of social media defamation proceedings poses specific challenges. In addition to the substantive points of law discussed above, various practical issues commonly arise, e.g. uncovering the identity of the author of the post complained or dealing with jurisdictional issues for an author based overseas. Whether a defendant is worth suing also requires careful consideration. In contrast to large news organisations an individual defendant may not, in practice, be able to pay damages or costs awarded in favour of a claimant.   Whether you are contemplating legal action in this area or have been threatened with a social media defamation claim, Birketts can offer expert commercially-minded advice to guide you through this complex area of law.