When Do Your Online Communications Become Defamatory?

defamatory
7 Graces Community Member and lawyer Lubna Gem Arielle talks about the effect of our words and explains how some online comments can be considered defamatory.

Our super-connected digital world has enabled us all to share our voices and opinions in public. Many of us have a social media presence doing just this, whether we are blogging, tweeting or joining in conversations on other platforms. The fast pace of these media can make it tempting to ‘shoot from the hip’ and say things without thinking. Later, we may suffer from the unintended consequences of our own words – especially when social media can make even a casual comment spread like wildfire.

Earlier this year, there were reports of an avoidable mess triggered by the release of a new vacuum cleaner. The British manufacturer Dyson claimed Samsung (of Korea) was infringing its patents, issued a claim and made public statements that Samsung was ripping off its design. Samsung responded with a defamation action in the Korean courts claiming compensation for $9.4 million on the basis that Dyson had sullied its reputation.

The Dyson/Samsung spat is between well-known household names with a huge sum at stake and the Korean court will need to unravel the facts to decide which laws apply under the complex rules of private international law. But in spite of these complexities, the general themes around defamation apply to ALL of us. Whatever the size or shape of our businesses, it pays to give some consideration to our comments and to understand when they amount to defamation.

And ethically, we may also wish to step back and look at the bigger picture, so we become more careful before we find ourselves sliding into the grubbier realms of gossip.

What Is Defamation?

Defamation is the law’s take on words that wound. The purpose of laws around defamation is to prevent attacks on someone’s reputation. There are two main types of defamation:

  • Slander refers to transient forms of defamation; these are generally words that are spoken, such as in conversations or meetings etc.
  • Libel refers to more permanent forms of defamation such as those which are written or broadcast, e.g. printed, audio recordings, film, etc.

Laws vary across the world as to whether or not a statement is considered defamatory. So if you find yourself in an actual quandary, you will need to obtain legal advice in the jurisdiction in which you are based.

As a UK lawyer, I can really only speak about the position in the United Kingdom (more specifically, in England and Wales), where the law recently changed with the introduction of the Defamation Act of 2013 (‘the Act’), which came into force on the 1st of January, 2014. I’ll be exploring the subject from that perspective.

Does a Statement Cause ‘Serious Harm’?

The new Act included a change so that it is no longer enough for someone to complain that a defamatory statement has been made about him or her, but s/he must now show that the statement causes ‘serious harm’ to his or her reputation. This change was heralded allowing greater freedom by putting an end to ‘trivial’ claims.

Meanwhile, those of us looking at the gloomier side muttered at the lack of clarity: what precisely do they mean by ‘serious harm’?

The concept in itself wasn’t altogether strange, because prior to the Act, case law had been heading towards defining the threshold of seriousness when considering damage to someone’s reputation.

Nonetheless, the words ‘serious harm’ in the new statute left many lawyers a little empty and resulted in a flurry of excitement as the first court judgment on the issue was handed down on August 13th of this year. The case concerned an action brought by Midland Heart housing association and its chief executive, Ruth Cooke, in relation to an article in the Sunday Mirror about the renting out of poorly maintained properties to benefits claimants on a street which had been immortalised in the Channel 4 series Benefits Street.

The article included a paragraph:

Three more homes in the road where residents claim they have been portrayed as scroungers and lowlife [sic] by Channel 4 are owned by the Midland Heart housing association. Its chief, Ruth Cooke, 45, earns 179,000 a year and lives in a large house in Stroud, Glos.

The Sunday Mirror removed the paragraph from the online publication and issued an apology in the newspaper the following week. The court held that the company’s reputation had not been damaged and was influenced by the effectiveness of the apology, which had been more prominent than the initial paragraph.

In assessing what might have been considered serious harm, the judge indicated some height to the threshold, but it is still far from set. The forward movement is that ‘serious’ is more than ‘substantial’ on the basis that in finalising the legislation, the wording ‘serious harm’ was chosen over ‘substantial harm’.

Although the case does not give the clarity hoped for, it does offer us some useful practical guidance: if someone alleges that you have made a defamatory statement and you don’t have a defence, you might be able to assuage potential harm by swiftly:

  • Issuing an apology and
  • Removing any questionable statements from your website, social media, etc.

Truth, Honest Opinion and Publication in the Public Interest

The law of defamation has always allowed some balance and leeway in expressing oneself to balance with the rights of free speech. This is reflected in the new Act in a series of defences. For example:

  • The word ‘truth’ replaces what was previously referred to in a defence as ‘justification’. Essentially, where what is conveyed is substantially true, a statement will not be defamatory.
  • The words ‘honest opinion’ replace what was known as ‘honest comment’, allowing for an opinion based on facts.
  • The term ‘publication in the public interest’ widens a fairly detailed concept of ‘privilege’. Essentially, it allows the publication of a statement which, even though it is not categorically true or a genuinely held opinion, is on a matter of public interest and the publisher reasonably believes that publishing it is in the public interest.

Rumours on Twitter

Twitter kudos seem to hinge on having one’s witticisms retweeted ad nauseam. But this can be a double-edged sword, as illustrated in the case of McAlpine v Bercow (2013), wherein the court considered the meaning of a Tweet and whether or not it was defamatory.

The Tweet in question, posted by Sally Bercow, said:

‘Why is Lord McAlpine trending? *Innocent face*’

This Tweet – which was posted shortly after a Newsnight story referring to ‘an unnamed senior Conservative politician accused of child abuse’ – was analysed in depth by the court. Eventually, the judge concluded that the Tweet meant:

‘The Claimant was a paedophile who was guilty of sexually abusing boys living in care.’

The judge also held that this statement was defamatory. This case was a landmark in confirming that a statement made on social media is legally subject to as much scrutiny as any other.

Legal Consequences Are Only Part of the Effect of Our Words

Speaking without thinking is a slip-up almost all of us make at one time or another, especially when acting in haste or under pressure. There may be no malevolence. Sometimes, our egos can get in the way, and saying something funny or clever can seem more important than being kind. Other times, saying something untoward may be entirely intentional – a quick fix for the affronted.

Whatever the backdrop, we all know that words cannot be unsaid. This is illustrated beautifully in the traditional story ‘A Pillow Full of Feathers’, wherein a rabbi shows a gossipmonger how spreading rumours is like casting feathers into the wind: once they are dispersed, you cannot simply gather them all up again. A throwaway remark can be repeated and become, ultimately, indelible.

As graceful business owners, we can choose to take responsibility for the outcomes of our communications. We can be mindful of the power of our words and of whether or not they are likely to cause damage to another’s business or reputation.

As in any decision between right and wrong, the legal component is just a morsel in a cornucopia that contains everything we hold as truly important – our personal ethics, our business ethics, our brand values, our personal qualities, our wisdom and our reputations.

The Grace of Connection

In her book The 7 Graces of Marketing, 7 Graces Founder Lynn Serafinn talks about the three kinds of music as defined by the ancient Greeks: musica instrumentalis, musica mundana and musica humana. These, she says, forge ‘three pathways of connection’. Of these three, musica humana – or ‘the music of the heart’ – is the ultimate connection that allows us to express who we really are and to connect deeply with others. Obviously, using words to undermine a competitor or to look good at someone else’s expense can never bring us to a more connected state of being.

Of course, it is a personal choice. If you decide that the ultimate aim of your missives is to connect with customers and others rather than to create an image or to sell your wares, then you are choosing the Grace of Connection.

I believe that using the Grace of Connection as a starting point – along with guidelines from the law – can enable us to navigate the potential tripwires in social media and other communications without too much anguish or conflict.

As the poet Hafiz says,

What is the key
To untie the knot of the mind’s suffering?

Benevolent thought, sound
And movement.

Until next time,

Lubna Gem Arielle
22 August 2014

Lubna Gem ArielleLUBNA GEM ARIELLE is lawyer who went back to art school and has a portfolio career. As a legal educator, she lectures on MA programmes at Sotheby’s Institute of Art and Birkbeck, makes law accessible for creatives as a professional speaker and is a writer/presenter for Legal Network Television. She is a legal adviser to Artquest, providing advice to visual artists. In her creative practice, Lubna works with ways of sharing information, stories and knowledge and the interplay across real and virtual media. Her current project is 6 Minute Bites, and has included ‘teaching in Tweets’, live events, and using improvisation exercises and role play to disseminate legal know-how to creatives. She is also a legal experiential practitioner with the Personal Communications Academy.

Lubna is a graduate of the 7 Graces Foundations of Ethical Marketing Course and member of the 7 Graces community and the Professional Speaking Association.

CLICK HERE to read other articles by Lubna on this website.

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Lubna’s Website: http://www.6minutebites.com

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Lynn Serafinn author of The 7 Graces of Marketing LYNN SERAFINN, MAED, CPCC is a certified, award-winning coach, teacher, marketer, social media expert, radio host, speaker and author of the number one bestseller The 7 Graces of Marketing — How to Heal Humanity and the Planet by Changing the Way We Sell and Tweep-e-licious! 158 Twitter Tips & Strategies for Writers, Social Entrepreneurs & Changemakers Who Want to Market their Business Ethically. She is listed in the Top 20 of the Top Marketing Authors on Twitter by Social Media Magazine and was a finalist for the prestigious Brit Writers Awards. She also received the eLit Book Awards Silver Medal in Humanitarian and Ecological Social Affairs, as well as the Bronze Medal in Business and Sales. Lynn’s eclectic approach to marketing incorporates her vast professional experience in the music industry and the educational sector along with more than two decades of study and practice of the spirituality of India. Her innovative marketing campaigns have produced a long list of bestselling non-fiction authors through her company Spirit Authors.

Lynn is also the Founder of the 7 Graces Project CIC, a not-for-profit social enterprise created to train, support, mentor and inspire independent business owners to market their business ethically, serve society and planet, and restore all that is best about humanity.

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