Defamation is an umbrella term, covering both libel (which is in a lasting form, such in print or online) and slander (which is more transient, such as spoken words). Both of these actions cover the publication of material that is defamatory and that will adversely affect the reputation of the claimant and that causes substantial harm. For slander, it is also necessary to show that there has been substantial damage.
Reputational damage caused by a defamatory story in a newspaper is a concern for both individuals and businesses. There are frequent cases of celebrities involving libel cases against newspaper groups, such as Johnny Depp’s sensational libel case in the High Court last year.
The widespread use of social media and the issues that this can raise in relation to defamation and disinformation adds another element to the legal issues in this area.
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The claimant has to show that the defendant was the one that published, or was responsible for, the publication of the defamatory statement.
Social media creates various complications in relation to the publication of a defamatory statement. There is no legal presumption that information published on the internet is automatically regarded as being published to the world. In order for publication to the internet to apply, the information has to have been accessed and downloaded
It is a common law principle that any person that has knowingly participated in publishing a defamatory statement may be held liable so long as the party is the:
Various organisations could be liable for a defamation claim where they have acted as an intermediary in relation to the publication of the statement.
In this case, the party has not actively been involved as the author or editor but has assisted in making the statement available to third parties. Parties that can be regarded as secondary publishers include:
These secondary publishers can be liable for defamatory statements where the primary publishers cannot be sued.
This is even more relevant for online secondary publishers that will include:
The Defamation Act 2013 has given some protection to these online secondary publishers, since the onus has moved onto the author, who is the online user, rather than the intermediary that has a more passive role. Intermediaries whose role is simply to publish statements created by others will not be regarded as publishers. This defence will not be available if the intermediary uses some form of editorial control or fails to remove defamatory content once it has been notified of its existence. This will cause the intermediary to be regarded as a publisher and mean that they can be held liable. The use of a hyperlink by a publisher is less likely to infer liability than one that is embedded or reproduces the unlawful content. These cases will turn on their facts and it will depend on the level of knowledge of the intermediary.
Online search engines are not automatically regarded as publishers of defamatory statements simply because a search result that generated automatic responses based on search terms produced the defamatory statement as part of that search. The search engine does not have control over what search terms will be entered by the user. Again the level of knowledge and actions of the search engine can affect whether or not they are viewed to have been involved in the publication of the statement.
The ECJ has held that social networks can be ordered to remove and block access to not just the original defamatory statement but also any identical or equivalent information that has been published. This has far-reaching consequences for these organisations since the sharing of material on social media sites can be instantaneous and far-reaching with multiple users sharing posts around the world.
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