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Key Topics
Requirement
Discuss in the light of the eventual enactment of the Defamation Act 2013
(2) Can law protect reputation in a time of globally accessible social media?
1000 WORDS
Solution
Introduction
The Defamation Act 2013 takes into consideration a large section of existing case law and statute, particularly in terms of defenses of justification (now truth) and journalistic qualified privilege as well as fair comment. The Act effectively addresses a ‘serious harm’ threshold for bringing a defamation claim and introduces a provision of ‘single publication rule’ as well as a new defense for website operation.
The territorial extent to which this law is applicable covers England and Wales only, while a few provisions among many are applicable for the Scotland.
The growth of online social media in the recent years has, to some extent, made the global community very jittery about the applicability and the usability of the social media platforms. As a result of this the existing laws and statutes have become more complex and challenging in terms of interpretation. Therefore, the amendments and reforms was done in order to meet the challenges of the modern life styles. The recent changes in the Defamation Act are effectively going to impact not only the traditional media outlets but are also going to affect citizens, corporations, NGOs, website operators, bloggers, academicians as well as scientists. It was an intended effort on the part of the legislation to strike a careful balance in order to protect the right of a person’s reputation as well as recognizing the right to freedom of expression(Mullis & Scott, 2014).
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The social media messaging and interaction on Facebook, Twitter and other similar platforms is considered as publishing and therefore is a subject of the law of libel. To understand it more clearly, the recent case of Lord McAlpine against Sally Bercowis the case in point. As a matter of fact, most users on social media have both followers and friends. The section 1 hurdle of ‘serious harm’ of the Defamation Act 2013 provides a stronger and effective protection in the field of free speech for the social media users. However, social media gives an immense possibility of sharing the information because sharing is implicit in it. Therefore, anyone having even very few followers and friends in the social media platform can nevertheless write a tweet or message which have the far reaching scope of being shared widely to meet the section 1 threshold.
Section 2 of the Defamation Act 2013 talks about ‘truth defense’ that only relies on the facts. As per the provision, the defendantcan still rely upon the facts even currently they are not present on the forum or tweets.However, they are at least needed to indicate what actually the underlying facts are. Similarly, the section 3 talks of honest opinion defense. According to this, the defendant doesn’t need to have tweeted the facts upon which the various opinions are based. The defendant may prove this by referring to various other tweets in their timeline. It is of paramount importance that the social media users need to be aware that messages and opinions that are not supportable by the facts cannot get any help from these defenses(Strauch, 2013).
The section 4 covers the public interest defense which is applicable to social media like various other forms of publishing. In case of a dispute having been aroused from a tweet in the public interest, the judge will have to take into account the reasonable belief of the tweeter. When a defendant is a citizen journalist, then a new test case must develop the law due the fact that section 4 has completely new defense.
The provisions being covered under Section 5of the Act will make adverse effects on social media users. In view of this, the host or service provider is needed to pass on any complaint if it wishes to take benefits of the defense available. The onus will be on the part of the author regarding his/her tweets or messages to decide whether they want to seek legal advice and defend their words. If in case the tweeter is an activist or journalist, it is quite unlikely that they would consent to their details getting passed on and the message will be removed. Facebook and Twitter being the giants of social media platform may want to defend the words themselves while not taking any benefits offered by the Section 5. Therefore, it amounts to the fact that Twitter will have to rely on these large companies, not the law, in order to keep the words public.
If a person is thoroughly confident about the veracity his or her words and can happily defend them, then the provisions under section 5 will prevent the claimant from forcing the host of the web to remove the statement.
Section 7 of the Defamation Act spells out the quite clearly that anyone attending an international scientific conference can also live-tweet the proceedings, even though the content regarding that may seem defamatory to others. However, Section 7 essentially specifies a fair as well as accurate report, so, the 140 character limitation on the Twitter may compromise this requirement.
Section 8 talks about the limits on the libel tourism, by virtue of which it is really harder for any claimant to sue anyone residing outside the ambit of EU with regards to the Tweets or other social media messages they may public.The use of Single Publication Rulecovered under Section 9 tells that it is highly unlikely that anyone would be sued if in case their words are retweeted after the limitation period of one year. However, Section 8(4) demands that the republication is not 'materially different'. The manner and presentation of the re-tweet may be taken into account.
Lately, a significant number of users from both a business and private context bring them their own attendant legal risks. Therefore, in light of the law, social media users have found themselves in legal actions because of the threatening, abusing or harassing behavior on their part("Legal Issues of Social Media Guidelines", 2015). There have been instances like breach of copyright, trademark infringement and even the Data Protection Act, whereas, some users have been dismissed from the employment or seen their business suffer as a result of statements made online by them.
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Legal Issues of Social Media Guidelines. (2015). Nonprofit Communications Report, 13(11), 2-2. http://dx.doi.org/10.1002/npcr.30242
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Mullis, A. & Scott, A. (2014). Tilting at Windmills: the Defamation Act 2013. Mod. L. Rev., 77(1), 87-109. http://dx.doi.org/10.1111/1468-2230.12057
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Strauch, B. (2013). Cases of Note - Defamation - Copyright Infringement - Thin Protection for Compilations - Elvis Celebrity Photos - Pam Anderson Tape. Against The Grain, 10(4). http://dx.doi.org/10.7771/2380-176x.2960
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