[1].  It was humiliating for the law firm and it was an appalling PR disaster for the Council. 

Twitter has become a place where people tend to forget that the normal rules of society apply.  They are either trolls or they are keyboard warriors who in real life would not dare say boo to a goose.  Abuse can be heaped against people.  Threats of murder, rape, or physical violence happen regularly.  When the abusers receive a knock at the door by the police, suddenly they are contrite and did not mean what they said.

So what happens when someone says something on Twitter that is genuinely nasty?  Can you sue for Libel?  Can they defend things said in the heat of the moment?

The most illumining example of Twitter abuse leading to a libel action is in regards to a very prominent CEO and who was/is very prominent in politics.  On 2 November 2012 Newsnight on the BBC aired a programme in which it was alleged that a prominent member of Margaret Thatcher’s Government had abused two boys in a children’s home.  The BBC rightly did not name who this prominent person was.

Quite a number of people made public comments, notably people on twitter, alleging that the CEO and prominent person was the unnamed man referred to in the Newsnight programme.  Many people named him on Twitter.  Why?  Because a rumour was started that it was this man.  There was no other evidence save for this rumour.  It absolutely was not the man named.

This man threatened sued for libel.  Every single person that named him on Twitter received letters from his solicitor demanding a retraction, an apology and a reimbursement of legal fees.  They all settled. A case had to go to Court.  Everyone apologised.  The action cost a lot fo people a lot of money.  The damage done to this man’s character could never be compensated for because there will now always be a lingering doubt in some people’s minds.  He was absolutely right to threaten to sue because the statements made were inexcusable.  They were made based upon a false rumour.

The BBC paid this man £185,000 in damages.  The one court case saw the defendant pay him £15,000 plus costs.  It is fair to say that the case was humiliating for the defendant.  But nowhere near as humiliating as it was for the man who was publicly accused of being something he was not.

So, if someone says something about you on twitter that is not true, can you sue them?

In simple terms, yes.  In broader terms, you must meet a number of qualifiers first.  The test for libel is that the statement was made to a third party.  Someone cannot libel you by making or publishing a statement about you to you.  It must be said to or published and read by a third party.  The statement must reduce you in the thinking of right members of society.

That is, people must think bad of you because of it.  The example used is a statement on twitter that this man was guilty of abusing children.  There cannot be many areas in which someone could be thought of less than a child abuser.

A good example of how this impacts reality is the case of, for example, Gary Glitter.  He was once one of the most popular pop singers in the country.  Now his name is mud and he lingers in a prison cell, having also been previously jailed elsewhere.  He was convicted and jailed abroad and upon his return to the UK he was jailed again in connection with abusing under-age children.  The newspaper were filled with all kinds of graphic and unpleasant material about him.  The Courts in England and Wales would be unlikely to allow an action for libel by Gary Glitter because, quite frankly, right thinking members of society could not in any circumstance think less of him.  He has no reputation that can be damaged any further than it already has been (though, as with all areas of law, never say never).

The statement made must also be untrue.  That is not as easy as one may think.

There are a huge number of defences to libel aside from the statement being true.  We do not intend to cover them all here.  The principal defences are set out in sections 2 to 7 Defamation Act 2013 & sections 5 to 10Defamation Act 1952 and the Defamation Act 1996 covers most aspects of what a claim can be.  Case law makes up the rest of the body of law that concerns this area of law.

In England & Wales defamation/libel suits have been used many times not to seek damages from unfair public statements but because defending a defamation or libel action is so difficult and so expensive that it quite often makes people stop making statements.  A very good example of this is the “McLibel” case.  Two Greenpeace activists (a local environmental activist group, not the international Greenpeace) handed out leaflets that accused McDonalds of doing numerous unpleasant things.  Muldoon Britton’s Kalvin Chapman assisted the two defendants in their appeal at the Court of Appeal in 1999.

In this case a claim was issued against six people who were found to have been handing out leaflets accusing McDonalds of a multitude of things.  It was alleged at the time that McDonalds used the English libel laws simply to silence critics of McDonalds.  Four took their legal advice that it would be almost impossible to succeed in a defence without millions of pounds in legal fees.  Helen Steel and David Morris decided they did not like being threatened by McDonalds and told McDonalds they would not shut up and sign McDonalds censorial agreement (which required them never to publish anything about McDonalds ever again).  A claim was issued in 1990.

The case went to trial in 1995 and was at trial for two years^[2].  It then went to appeal, and was decided by the Court of Appeal^[3] having started on 12 January 1999 and lasted 23 court days, ending on 26 February 1999.  The House of Lords refused to hear the case.  It then went to the European Courts, but this did not involve McDonalds (Steel & Morris received a judgment that confirmed the British Government had breached their human rights by not allowing legal aid given the substantial public interest in freedom of speech at stake in such a case).

Steel and Morris had over ten years of their lives taken away from them by McDonalds.  They preferred that to the alternative, which was to stop talking about McDonalds and telling people why they believed McDonalds was not a nice company.

Outside of such extensive proceedings, a libel trial would not be expected to last two years.  But they are expensive.  It is unusual in law, but in England & Wales it is for the defendant to prove the truthfulness of a statement alleged to be libellous.  In most other areas of law it is for the claimant to prove their case.  It is reversed in libel and defamation.  This does not happen in most countries.  In the US, where free speech is a constitutional right, it is for the claimant to prove their case.  That makes London the place where many people and many companies and influential people will issue proceedings for libel and defamation.  That is because the rules that apply are very much in favour of the claimant.  Indeed, the Americans view the English defamation and libel law as being so unfair that the law prohibits a libel judgment being enforced in the US without the agreement of the Government^[4].  This makes England & Wales preferential where someone has published a libel and there is one person in the UK who has read the published statement.  So, for example, if Mr Joe Blogs has just one Twitter follower in England, that would be enough to allow Mrs Joanne Blogs to sue Mr Blogs in England, and thus benefit from the extremely difficult libel rules that apply here, whereas if she sued Mr Blogs in the US she would be faced with the difficult task of proving her case.

The principal question you need to ask yourself is not only is the statement false and would lower me in the thinking of right members of society, but does the person have a defence.

We cannot set out in detail all of the defences, but the principal ones, bar truthfulness, are:

(1) Honest opinion.

There is a huge difference between a statement of fact (“He stole £1 million from me”) and an honest opinion (“after £1 million was stolen from me, Mr Blogs got a new sports car, I suspect he has questions to answer.”).  As with everything in law, what an honest opinion may not be a straightforward issue.  However, there are very clear deviations on this.  Calling a prominent businessman and senior politician a child molester with no evidence could never be honest opinion unless the speaker/writer had substantial evidence to suggest it was true.  A rumour on twitter does not constitute such evidence.  The form that the statement takes will also be relevant when considering whether something is an honest opinion or a statement of fact.  An allegation of dishonesty, fraud or attempted fraud would usually fall on the side of fact rather than opinion^[4A].  Making a statement of fact means that it is not an opinion.  The way you word your statement may make the difference between being allowed to say it and having to pay substantial damages for having alleged it.  Being flippant or sarcastic may not be seen that way by a Court when deciding what the actual meaning of your words were.  The British sense of sarcasm is not helpful in libel proceedings, though of course if it is obviously sarcasm, a Court may rule it does not have the ordinary meaning the words convey.

(2) Publication on matter of public interest.

This is a very difficult argument to have.  It is made regularly as a defence, but is not something you would argue unless you had some very substantial grounds to do so (or you have no defence and are throwing everything and the kitchen sink at it).  It is likely to be used alongside other defences, such as qualified privilege.  However, this defence may be used even if the statement made was later found to be untrue^[5].  It really does depend upon what your honest thinking was at the time of making the statement.  The statement published should be published in the public interest only if the maker of the statement held an honest or reasonable opinion that the statement was true at the time of making the statement.  So, where the maker of the statement could not have had an honest opinion that it was true at the time of making it, then the public interest defence is unlikely to survive, and if it is the only defence then the defence is likely to struck out early and summary judgement entered^[6].

The test for public interest, as with honest opinion, is that it is made where the defendant reasonably believes it would be in the public interest to publish.  Again, this provides a lot of latitude for the defendant, but it is for the defendant to evidence the case and not the claimant.  Simply repeating something on Twitter because you heard it in the rumour mill on Twitter will not survive.  You need evidence to prove you had a reasonable belief that it was in the public interest to publish the defamatory statement.

(3) Privilege & Qualified Privilege.

There are certain occasions in which the maker of a statement is allowed to make a statement, irrespective of whether it is true.  Sometimes that is qualified.

The best example would be parliamentary privilege.  A statement made in Parliament is privileged and no one can sue the person making the statement or publishing the statement.  Many MPs throughout history have made statements in Parliament, especially in speeches in the House of Commons or House of Lords, which would have resulted in litigation had the statement been made outside of Parliament.  A very good example is evidence given to a select committee.  If, for example, Muldoon Britton gave a report to the Treasury Select Committee accusing a bank of fraud from the moment that report is accepted by the Committee it is cloaked in absolute privilege.  Another is giving evidence in Court.  Anything said in Court is privileged (because had it been otherwise people may be circumspect in giving evidence for fear of being sued).

A recent example is a conservative MP using Parliamentary privilege to make a statement that a sports body was subject to corruption^[7].  This followed a number of executives being arrested in the USA for Corruption^[8] and some being suspended for the same^[9].

An example of qualified privilege is a newspaper giving an accurate report of something.  Giving an accurate summary of evidence heard in Court proceedings (anywhere in the world) is given qualified privilege.  So, if a journalist covers a court case they can report it, but if they editorialise it or give an opinion, they may have difficulties.  Qualified privilege attaches to reports by someone in a position of trust or authority.  Journalist are usually the people using this defence, but it can be wider than just journalists.

As noted above, this is not detailed and certainly does not cover all defences available.

If someone has said something about you on Twitter you need to consider what your options are.  If someone has threatened you because of something you have said on twitter, you really do need legal advice urgently.  The statement not being true does not automatically mean you would succeed in a claim for libel.  Before you start threatening people with claims of Libel, you should seek independent advice from a solicitor.

Defending a case can be very difficult and will cost a lot of money.  Some of the luminaries of libel/defamation make a lot of money simply out of just threatening to sue for libel/defamation.  In the case involving the man who held a position in the Thatcher Government, his solicitors demanded their costs with an apology and retraction.  Almost everyone paid up and apologised.

So, if you are threatened with libel proceedings you must urgently seek legal advice.  Simply replying to say it is true is not enough. Many, many cases (not just libel) are ruined by someone either responding because they think they know the law or, worse, asking for legal advice from an on-line forum and being egged on by arm-chair lawyers result in case becoming very difficult to defend.  Ask an expert before you respond and for goodness sake, do not take advice from an on-line forum.  Get your evidence together.  Take screen shots of anything that you think will help evidence the case.  Remember most tweets and web pages can disappear very quickly.  Make sure you record time and dates for everything.

Equally so, a case can be damaged if you have been the subject of a statement and you have used your own arm-chair lawyerly skills to threaten a would-be defendant.  Please do not do this.  Seek proper legal advice before you tackle the statement maker.  A well drafted letter of claim can really make a huge difference in having the statement removed and an apology given with reparations for the damage caused.  A rushed out emotional rant is unlikely to do this.  Get your evidence together.  Take screen shots of the tweets.  Get evidence of who is the tweeter, remembering that the Twitter account is likely to be closed the moment a genuine threat of litigation is made.  The offending tweet will almost certainly be removed.  A clumsy threat of litigation based upon your own knowledge of libel laws could make matters worse, such as the would-be defendant simply repeating the statement and asking others to re-tweet it.

Muldoon Britton would be happy to discuss your case with you.  Please remember that with libel on twitter, the evidence can disappear very quickly.  Help us do our jobs by taking screen shots of everything you wish to rely upon.  Do not contact the otherside – let us do this.  If you are looking to defend an action it is essential that you do not repeat the statement or compound it by making further statements.  Stop tweeting.  Please click here to see our libel page.

Kalvin Chapman

03/10/2016

 

Resources

 [1] The Daily telegraph 14 June 2016 “Council solicitors attacked for social media ‘gloating’ with picture of cat after tribunal win against parents of special needs child”

http://www.telegraph.co.uk/news/2016/06/14/council-solicitors-attacked-for-social-media-gloating-with-pictu/

[2] McDonald’s Corporation And McDonald’s Restaurants Ltd v Steel & Morris [1997] EWHC QB 366 

[3] Steel & Morris v McDonald’s Corporation And McDonald’s Restaurants Ltd  [1999] EWCA Civ 1144 

[4] 28 U.S. Code § 4102 – Recognition of foreign defamation judgments 

https://www.law.cornell.edu/uscode/text/28/4102

[4A] Wasserman v Freilich [2016] EWHC 312 (QB) 

[5] Yeo v Times Newspapers Ltd [2015] EWHC 3375 (QB) 

[6]  Barron v Vines [2015] EWHC 1161 (QB) & Barron v Vines [2016] EWHC 605 (QB) 

[7] The politics Home 6 February 2016 

https://www.politicshome.com/news/uk/culture/news/68365/tory-mp-uses-parliamentary-privilege-accuse-fifa-candidate-cash-votes

[8] CNN 3 December 2015 “U.S. charges 16 FIFA officials in widening probe
http://edition.cnn.com/2015/12/03/sport/fifa-corruption-charges-justice-department/ 

[9] the Daily mail 2 December 2015 “Of the 22 members of the FIFA executive committee who awarded the World Cup to Russia and Qatar only seven remain… so what happened to the other 15”
http://www.dailymail.co.uk/sport/football/article-3342468/Of-22-members-FIFA-executive-committee-awarded-World-Cup-Russia-Qatar-six-remain-happened-16.html