Online defamation: what legal action can you take?

Social media platforms have come under considerable criticism for facilitating and hosting many defamatory statements online. Whether statements take the form of tweets, videos, reviews, or other comments, defamatory comments can have a materially damaging impact on a person’s personal life and their career. In the case of an organisation, defamatory statements can cause considerable financial harm and therefore put employees at risk.

Defamatory statements are statements that cause, or are likely to cause, serious harm to a person’s or organisation’s reputation, irrespective of whether they were made maliciously or were just simply ill-conceived. Where those statements are made within the last 12 months, it may be possible to bring a claim under the law of defamation.

Does the size of the readership matter?

While a larger readership of a defamatory statement has greater potential for damage, size is not wholly determinative of defamatory severity. For example, a defamatory statement made in a private Facebook group to a limited but relevant number of people could be just as damaging to an individual as a statement made in a public forum posting to a larger but less relevant audience.

What can be done about an online defamatory statement?

Before issuing a claim, the first step is normally to contact the poster of the defamatory statement, demanding its removal together with an apology, clarification and (as relevant) a payment of damages as financial compensation. If the poster fails to comply, it may be necessary to then issue proceedings at court, seeking an order for damages and other remedies including an injunction to prevent repetition of the defamatory statement.

Additionally, websites and social media platforms have guidelines that prohibit defamation, and so at an early stage it may be possible to contact the relevant platform, to seek a takedown of the statement on the grounds of a policy violation.

Further, it may also be beneficial to consider additional or alternative legal actions, including a misuse of private information, a breach of confidence, and/or a data protection claim, depending on the facts of the case.

Is there a defence to a defamation claim?

A complete defence to a defamation claim is that of ‘truth’; however, the onus is on the defendant (the party accused of defamation) to prove the truth of the statement, which can be difficult.

If it is not possible to prove the truth of a statement, a defence of ‘honest opinion’ may be available to a defendant; however, it is subject to several important conditions and will be defeated if there is evidence of malice.

There are further, additional defences which may be available in a defamation claim, and whether they apply will depend upon the facts of each case.

What initial steps should be taken on discovering a defamatory statement online?

1. Preserve evidence. The volatile nature of online platforms means that posts can be deleted or edited rapidly. It is important to take screenshots, noting the time and date of all and any potentially defamatory statements. This could be crucial evidence in the event of legal action.
2. No contact. It is recommended that the poster of the defamatory statement is not contacted until relevant evidence has been preserved and legal advice has been sought. In that way, the risk of prejudicing a potential claim by something done or said without legal advice is minimised.
3. Seek legal advice without delay. Tweets and comments are easily shared, and so the initial damage from a defamatory statement can increase exponentially over a short period of time, so a legal strategy should be formed without delay. There is also limited time in which a defamation claim may be brought – within 12 months from first publication of the relevant statement – so it is important to not be caught out of time if it is necessary to issue proceedings.

Online defamation can be distressing and damaging, so it is important to be proactive, informed, and composed. By following these steps, the murky waters of online reputation attacks can be navigated with confidence.

If you have concerns about a potential defamatory statement, please contact Will Charlesworth.