The Legal Implications Of Social Media

Whilst the majority of people use social media to interact with their peers in a reasonable and lawful way, there is definitely a section of society that abuse the platforms for bullying and trolling victims.

Often perpetrators will deploy untrue comments with a view to inciting others to gang up on a victim and may also include photographs of them. What steps can an individual take if they are the victim of such abuse?

The unfortunate reality with our legal system is that, in the absence of the police viewing the conduct as criminal and taking action against the perpetrators, to protect themselves individuals will often need to spend considerable sums on legal fees to have the posts taken down and to pursue compensation.

The available remedies in defamation cases are discussed in our previous blog, see here. If an individual does not use their social media presence to raise their profile for work, it may be that the victim can simply take the power away from the perpetrators by taking their social media accounts down.

This may not stop the posts but at least the victim will not see them. This may however not be a viable option. By way of example, if someone is a teacher and is widely being accused of being a paedophile, the existence of the posts may lead to a serious investigation into whether the teacher should be allowed to continue working. In such cases, an individual may have no choice but to pursue formal legal proceedings.

There are a number of legal arguments that can be pursued in respect of untrue allegations made on social media, including claims of defamation or breach of data protection legislation.

What is a claim in defamation?

A claim in defamation in English law requires a Claimant to establish serious harm caused by the defamatory comment. If a Claimant is unable to do so, the claim does not even get out of the starting blocks.

It is therefore important to assess each case on its own facts to determine what the impact of the comments made are. In the event a Claimant is able to establish serious harm, the Court will assess (usually at a preliminary hearing) whether the comment made was a statement of fact or opinion, the natural and ordinary meaning of the words spoken and whether the meaning attributed to the comment is capable of being defamatory.

If after that hearing, the judge determines that the meaning is capable of being defamatory, it will be for the Defendant to establish one of the available statutory defences, such as establishing that the meaning complained of is substantially true or the comments made were honest opinion.

In respect of a claim pursuant to the data protection legislation, this would usually be made against the data controller (i.e. the social media platform) on the basis that the data held about the victim is inaccurate.

Whilst the burden of proving that the comments made were true would in defamation cases rest with the Defendant, the converse is true in data protection claims. A Claimant should therefore assess which is the better legal route for them to pursue.

Whilst pictures will rarely be deemed to be defamatory and accordingly a complainant would struggle to have them removed, there has been a decision in a Dutch case where an individual did argue successfully that the social media platform should have to take photographs down (see our previous blog). Whilst this would not be binding on the Courts of England and Wales, it would at least offer some guidance on how such cases should be argued.