I recently spoke at the Social Media And The Law 2014 Conference in London, and besides learning what platform I and my clients should be afraid of the most this week, what interested me above all else was the fact that, whilst reputational risk was still very much on the agenda in the wake of a clear line of cases which made it plain to anyone who cared to ask that the Courts treat online conduct just as seriously as offline conduct, defamation was only one of an evolving set of risks which we as lawyers have to manage in the online world, where bad news and ill-informed speculation move at the speed of thought.
In fact, some of the most recent developments in internet and social media law suggest that data protection and privacy, partly as a result of the extremely divisive “right to be forgotten” established in the Google Spain case (which some claim still doesn’t actually exist and which the UK Judiciary and Parliament would love to be “forgotten”, even as Google is being urged to make their EU-compliant method of removing out of date, excessive or incorrect information in which there’s no real public interest part of their global business model), are the real “undiscovered country” to be adopted by those looking to effectively manage their online profile in the face of anonymous or more brazen criticism.
We’re no longer, as much as we may still be in mourning for that fact, the libel capital of the world. If the reform of CFAs didn’t go some way towards stunting the growth of the reputation management industry, the ostensibly sweeping changes to defamation law introduced by the Defamation Act 2013, which became law on January 1st 2014 were certainly intended to keep it confined to a metaphorical playpen by making it harder to fight and win a libel case, to introduce new and amended defences and the brand new “serious harm” test which was expected to do much of the case management for Judges in advance, making strike-out applications and spurious claims a thing of the past. Right? Right?
Maybe not. Defamation is still very much alive and kicking. Recent research by Thomson Reuters (as reported in the Independent during October this year) showed that the number of defamation claims brought over derogatory comments on social media has gone up by over 300% in the last year alone, attributed to the fact that the general public still doesn’t quite get the fact that what you say and do online can be punishable if it has an appreciable effect on a reputation offline. Not only that, but online feuds leave easily reproduced paper trails which can provide key insight into one of the most important considerations in any defamation claim – context. Not only that, but defamation cases involving mainstream media have also increased in number. Reputation is easy to build in the online world, but is as fragile as its owners can be agile when developing it, who are increasingly seeking our legal redress when “the conversation that’s happening without you” doesn’t stay that way.
The Defamation Act 2013 was expected to drastically reduce the number of Defamation claims, but as many pointed out when it finally became law, it gave birth to a new line in satellite litigation over what some of its clear English terms actually meant. The “serious harm” test was clear enough for corporate claimants in that they’d now have to show financial damage (or at least that it’s likely) as a result of a statement (which is no bad thing, as evidence of real damage to reputation is a key component of any defamation claim) but what that means to individuals is still unclear, despite the ruling in Cooke v MGN earlier this year which established that “serious” was an ordinary and unambiguous English word, that in proving serious harm, all but the most severe cases would require actual evidence and that an early apology may eradicate or minimise any unfavourable impression caused.
It’s now very hard to tell whether a statement is defamatory in light of the new serious harm test until the extent of publication and the identity of its recipients is known, leaving the issue of the meaning of the statement in question an afterthought and changing the emphasis of a well-established body of case law. Cases where serious harm is “likely” are almost certainly going to come in for serious judicial scrutiny.
We still have some way to go before we know whether or not the 2013 Act has well and truly put defamation further down the agenda, especially given that we don’t have much clear guidance on the revised defences and any clear guidance upon how widely the section 5 intermediary defence is being used when taking down content in accordance with the E-Commerce Regulations 2002 is far easier and less risky.
The point of all this? Defamation is very much alive and kicking, but it’s in the middle of a growth spurt whilst pushing the boundaries of what it can get away with. Like any unruly child, we need to keep a close eye on it as it develops; the defence and management of reputation is still very big business in the social media age. It’s all to play for; we just need some clearer rules.