After ITN's hour-long sexual harassment special yesterday, our media advisor, Fiona Peet, looks at #MeToo - and the hidden dangers of posting libellous comments on social media. She explains what happens when someone brings a defamation claim, and the responsibilities of the author, the subject, and the social media operator.
In the wake of the Harvey Weinstein sexual abuse scandal, #MeToo exploded on social media. With millions of online posts, and a wave of global solidarity, thousands of women, and some men, used the hashtag to share and denounce personal experiences of sexual harassment. New allegations of harassment emerge almost daily.
But, using social media to accuse someone of sexual harassment isn't without legal risk.
What does the law say?
The law of defamation applies just as much to individuals publishing on social media as it does to traditional print and digital publishers, like newspapers or websites.
If a social media post isn't true, and affects someone's reputation negatively, they might have a defamation claim against the author.
Bringing a defamation claim
In court, the person claiming defamation would have to establish that - as well as being untrue - the statement they're claiming about has caused, or is likely to cause, serious harm.
In most circumstances, an accusation of sexual misconduct will satisfy the serious harm test. If a comment on social media goes viral, the impact on a person’s reputation can be catastrophic. Depending on the circumstances, they could also claim for malicious falsehood, breach of confidence, misuse of private information, and/or harassment.
Successful claimants can seek a range or remedial orders from the Court, including an injunction to prevent the wrongdoer from posting further defamatory comments, an order requiring the wrongdoer to publish a summary of the judgment, or an order for the defamatory post to be removed and damages to compensate the claimant. Two types of damages can be awarded.
Compensatory damages compensate for any distress, loss, or damage to a person's reputation. These could also include special damages for extra hurt, calculated in money (so, the loss involved for losing a job, for example).
In exceptional circumstances, the court can award exemplary damages instead, to punish publishers who deliberately make defamatory statements for personal gain.
Defending a defamation claim
There are a number of defences available to those accused of posting defamatory comments online, including:
If the author can prove that their statement is true, they'll have a complete defence. They don't need to prove that every word is true, but that the 'sting' of the statement is.
If an author is making allegations against a high-profile individual, or public figure, they may be able to use a defence of public interest. There's no single definition of the term, but the court is unlikely to consider cases that are of a purely personal or private nature to be 'matters of public interest'.
An offer of amends
If the author doesn't want to defend their claim, a quick solution can be making a written offer of amends, admitting that the statement was defamatory. They must follow a specific procedure, and offer to publish a suitable correction and apology. They'll also have to pay compensation, and reasonable legal costs. If the person claiming defamation accepts the offer, they can't continue with the legal proceedings. If the offer is rejected, the court will apply a 50% discount to the amount of compensation the author has to pay.
Responsibilities of the operator
There's often conflict surrounding social media platforms' responsibility for the comments people post on their sites. To avoid being held liable under the Defamation Act, an operator has two possible defences:
- Showing that it wasn't a 'publisher', or didn't know that it was implicated in the publication of a defamatory statement
- Removing the offending comments.
The Defamation (Operators of Websites) Regulations introduced the second option in 2013, as well as a formal process. Operators must:
- let the post's author know that they're facing a defamation complaint
- give the author five days to consent to the post being deleted
- delete the comment within the next 48 hours if the author doesn't reply
- seek consent to share the author's contact details with the person complaining, so that they can begin legal proceedings, if the author refuses to take the post down.
An operator can be considered a 'publisher' after being given a notice of complaint, but not before. So, if an operator is altered to a defamatory statement because they've received a complaint, they won't be able to rely on the first option of defence.
What next for the entertainment industry?
Utilising social media's global reach, voices that'd long been silenced in the entertainment world are bringing the industry's sexual harassment epidemic to light.
As a result of #MeToo, major media trade associations are now calling for women to report experiences of sexual harassment, bullying, and abuse at work. So far, more than 100 individuals have contacted Women in Film and Television (WFTV) to report experiences of sexual harassment. Their confidential testimonies will be used to inform industry-wide guidelines, compiled by WFTV, Directors UK, the BFI and PACT, in a long-awaited move to professionalise the media industry.