The rise of Twibel Article icon

The As more high profile targets of nasty tweets launch twibel action, where does freedom of expression stop and libel begin?

How much are you willing to pay for a tweet? If the recent spate of libel cases from Twitter is anything to go by, 140 characters could cost you anything between £3,000 and £185,000 if what you say is deemed to be defamatory.

Sally Bercow, wife of the Speaker of the House of Commons, found this out the hard way in 2013 after the late Lord McAlpine successfully brought legal action against her for wrongly implying on Twitter that he had been involved in sexual abuse, tweeting Why is Lord McAlpine trending? *innocent face*.

Bercow was instructed to pay McAlpine an undisclosed sum in damages after the judge deemed that her ‘*innocent face*’ comment was ‘ironical’ and that her follower count of 56,000 at that time meant there was sufficient reach for the tweet to cause significant damage.

Cases nowadays are rarely so clear-cut, particularly for companies who may be defamed on Twitter. Since the new Defamation Act came into force at the beginning of 2014, litigants must prove that a tweet has caused, or is likely to cause, ‘serious harm to the reputation of the claimant’ if it is to be ruled as defamatory.

For a company, ‘serious harm’ means demonstrating ‘actual or likely serious financial loss’. This steep burden was intended to lower the number of libel cases, which rose 300 per cent between 2012 and 2014, ensuring that only the most serious are taken to trial, but it also means that legal action is now not only more costly but the risk of being unsuccessful is higher.

So then, what can companies do to clamp down on dissenters on social media? ‘The majority of criticism is best left alone,’ advises Alex Keenlyside, associate at Pinsent Masons. ‘Freedom of expression is an important human right.’

‘We live in a culture or jurisdiction where we support freedom of expression,’ adds Magnus Boyd, partner at Schillings. ‘People should focus on whether what they are saying is accurate or not.’

Sometimes it appears that the best reaction to a potentially defamatory statement is actually to take no action at all. It certainly worked for David Cameron in the aftermath of Pig Gate, when a distasteful story about a dead pig and the Prime Minister appeared in a book co-authored by Lord Ashcroft. His spokespeople refused ‘to dignify’ the claim with a response, and the story soon lost momentum.

‘Silence can be the best way of dismissing rumours as not worthy of the subject’s time,’ says Ashley Hurst, partner at Olswang. ‘But often, unless corrected, rumours will continue to fester and silence can be interpreted by some as an admission of guilt. If an individual or company does choose to respond, the content and tone of the response will be very important to avoid creating another story or conversation about the content of the response. This is where good PR advisers are worth their weight in gold.’

On occasion, however, rumours can go viral on Twitter, but it is nearly impossible to predict which will gain momentum this way. ‘No one can ever tell what will happen to a rumour online. Twitter has a life of its own,’ adds Hurst.

‘But experience and sound judgment helps and some of the online tools available do help in mapping out whether an Internet post is actually causing damage. It is easy to be over-sensitive in the heat of the moment but many companies and individuals are starting to realise that Twitter trends don’t last long and are often quickly replaced by another bit of scandal. The tipping point is often when the mainstream media report the story.’

‘That is the least predictable factor,’ agrees Boyd. ‘It’s based on other factors, like what else is out there. A Twitter storm often depends on the rest of the weather.’

‘I would suspect the fame of a particular person would definitely be indicative of whether something was going to get out of hand,’ says Ben Farrand, assistant professor at the Warwick School of Law. ‘Faked celebrity deaths are a key example of this, to the extent that when the very sad news about David Bowie and then Alan Rickman, in quick succession, was first announced, many people first assumed that these were Internet-based hoaxes.’

Farrand believes that a disproportionate reaction to a claim is likely to give it oxygen. ‘Another interesting dimension is something known as the Streisand effect, whereby the more that an individual or corporation acts to suppress a rumour or damaging story, the more likely that information is to be shared.’

 The Streisand effect is named after the singer Barbra Streisand who attempted to suppress photographs of her residence in Malibu, California and, in so doing, inadvertently drew further attention to it.

‘When you look at an allegation on Twitter or on Facebook, there are a number of factors to consider,’ adds Boyd. ‘Firstly, the seriousness of an allegation. Secondly, whether it is in the public interest. Thirdly, the likelihood of the allegation spreading, which is a great deal earlier on Twitter. The fourth factor is the credibility of the author.’

An allegation from someone like Stephen Fry, who has more than 12 million followers, is likely to hold more weight than the average Twitter user, for example.

Similarly, Mike Patrick, senior associate at law firm Farrer & Co, notes that there are numerous factors in deciding whether to take action; the seriousness of the allegation and the extent of publication being the most obvious.

There are times when it is clear that a statement is far too serious to let slide, such as Bercow’s tweet against Lord McAlpine. When this is the case, companies should react as soon as possible, whether this means taking legal action or simply mobilising the communications team.

The sooner [you act], the better,’ says Boyd. ‘The longer you leave it, the greater the risk of dissemination – more people will read it.’ Hurst concurs. ‘Often there isn’t time on Twitter to seek legal advice. It’s far better if the social media team or individual concerned has received the necessary training to make sensible judgments themselves.

‘But obviously in sensitive situations then it is always advisable to seek legal advice, particularly if there is a risk of defaming a third party. It helps if the lawyers are able to provide the advice very quickly though. There’s no time for legal memos when a tweet is going viral.’

‘A legal response certainly won’t be appropriate in every case, but the sooner you can speak to your lawyers the better,’ adds Patrick. Companies have got to be agile, understanding where the public relations and legal teams can be of benefit and how they should work together.

Boyd advises that the legal and public relations teams in a company work closely, lamenting that all too often the communications and legal teams have not spoken or prepared a response plan before a crisis hits.

‘What we tend to do is break these people out of their silos and they see the connection between themselves,’ he says. Keenlyside adds: ‘Everybody should know who the crisis response team consists of.’

This should include a designated member of the board who can address problems quickly at a senior level and is authorised to sign off on the proposed strategy. Contacting Twitter itself can be an effective, discrete way of removing defamatory content, though this can be a difficult process.

‘The law of defamation applies in the same way to Twitter as it does to any other form of communication,’ says Hurst. ‘We have seen a number of cases, such as the case that New Zealand cricketer Chris Cairns brought against [Indian Premier League commissioner] Lalit Modi [who alleged Cairns had been involved in match fixing], where high damages (in that case £90,000) have been awarded for libels on Twitter.

‘The complication comes when claimants threaten to sue Twitter instead of the author of the tweet. In those circumstances, Twitter has an array of legal defences in its armoury which mean that such actions would become very complicated and expensive.’

Patrick admits that, whilst ‘generally, companies such as Google, Twitter and Facebook have approached their business from a First Amendment standpoint [guaranteeing freedom of expression in America]’, there has definitely been progress made in terms of social media platforms co-operating with UK defamation and privacy law over the past few years.

 ‘Certainly some of them are more willing to take down material and disclose the personal information of users who violate their terms and breach the law,’ he adds.

‘The terms and conditions of Twitter are interesting,’ concedes Boyd. ‘They don’t specify that they will take down anything defamatory, but it does say it will take down anything unlawful. By nature, anything defamatory is unlawful.

‘Various people are responsible for defamatory comments in traditional media – the journalist, the editor and the publisher. In the case of Twitter, there are three parties at play – the original author, anyone who retweets the post and Twitter itself. Twitter will be responsible for the scale of the defamation, so it is in their interests to catch it early.’

In the event that personal information is divulged, however, jurisdiction adds a further complication to legal proceedings. ‘Section 9[2] of the Defamation Act means that any company suing for libel on social media has to prove that England and Wales are the most appropriate places for the case to be heard when the alleged defamer is not domiciled in the UK or EU,’ says Farrand.

‘However, determining the identity and location of a Twitter user could be quite difficult when something is posted anonymously and the individual goes to lengths to conceal their identity and relevant information, such as their IP address.’

 Boyd adds that he and his colleagues at Schillings have had to build a referral network, to direct clients to the rightful country where the case can be pursued. ‘We’re now hunting much more like a pack.’

 ‘Social media is an international medium and trying to draft national laws to deal with online defamation is often a waste of time,’ says Hurst.

‘The answer probably lies in allowing the Internet platforms themselves to innovate to develop solutions to strike the correct balance between freedom of speech and the right to privacy and reputation.’

Twitter has been criticised heavily in the past for allowing abuse to exist on its platform, particularly towards women and ethnic minorities, but it started this year by updating its terms of use, explicitly stating that users cannot promote violence or directly attack and threaten people on the basis of their race, ethnicity, national origin, sexual orientation, gender, gender identity, religious affiliation, age, disability, or disease. Accounts that violate this and other rules may be immediately suspended.

Whether taking legal action or putting into practice an effective communications strategy to combat online defamation, the best thing a company can do is be prepared. And the communications team has a large role to play in minimising risk.

‘We get clients to think about what’s coming up on a quarterly or six monthly basis, thinking about how that might be picked up – how will people comment and write about it?’ asserts Boyd.

‘When we do these exercises with our clients, what we found is that they become better at anticipating what might become an issue. [The more planning they do] the better they are able to improvise when they do come across an issue.’

‘Prevention is better than the cure,’ agrees Patrick. Keenlyside also advises carefully monitoring what is said about a company online, making it easier to identify issues before they make it into the mainstream.

It is likewise important that Twitter users also understand the responsibilities of attacking companies online. ‘Would you publish something on Twitter that you wouldn’t be prepared to say at a party, where you might not necessarily know everyone there?’ asks Boyd, echoing Lord McAlpine’s solicitor Andrew Reid who said at the time of his legal action: ‘Twitter is not just a closed coffee shop among friends. It goes out to hundreds of thousands of people and you must take responsibility for it.’

‘I think many social media users who defame people online do so very deliberately knowing full well they are breaking the law and that they a protected by a cloak of anonymity,’ says Hurst. ‘However, there have been some unfortunate cases, such as when people retweeted a defamatory tweet from Sally Bercow without realising they could be liable for repeating the defamatory allegation.

‘The press attention that these cases receive does help to educate social media users and companies are getting much better at training their employees rather than relying on a social media policy that no one reads.’

What is said about companies on Twitter is potentially about to get a lot longer, after the news broke that the platform is considering updating its character limit from 140 to 10,000. The jury is out, however, to whether this will have any impact on the risks of online defamation.

‘140 characters is already more than enough to defame someone,’ says Patrick. ‘It is unlikely that Twitter’s decision will see a wave of new defamation claims being issued. The problem is sometimes just identifying who has defamed you.’

Farrand agrees that the future is unclear. ‘I am honestly not sure – part of Twitter’s appeal to people is the short, punchy messages it conveys. Without empirics, it would be very difficult to predict what sort of change an increased character limit would have.’

Boyd, however, thinks the additional words will minimise the risks of libel. ‘The higher the character limit, the easier it is to be accurate. The most damage comes when people conflate their meaning into a tweet.’

Only time will tell.


SHOULD COMPANIES LOOK AT EMPLOYEES’ MESSAGES?

A new European Court of Human Rights ruling suggests that organisations are within their rights to read their employees’ private messages to check whether they are working in office hours, but should companies rush to look?

The ruling relates to the dismissal of Romanian engineer Bogdan Barbulescu after his employer discovered he had been sending private messages on Yahoo! Messenger during work hours. Barbulescu challenged that decision in court, claiming that his rights had been violated.

The court dismissed the complaint, arguing that Barbulescu was aware of his company’s regulations. This decision was upheld by the Court of Appeal. The European Court of Human Rights, which also ruled against Barbulescu, found that his employers had accessed his Yahoo! Messenger account to check on client-related correspondence rather than check up on him.

'From a UK employment perspective, the decision in Barbulescu v Romania is not anywhere near as significant as recent news reports appear to suggest,’ says Olswang employment partner Melanie Lane. ‘It is already common practice in the UK for employers to review employees’ emails and messages on company systems when carrying out disciplinary investigations, and employment tribunals have generally proven willing to consider relevant evidence obtained in this way.

‘Indeed, the Information Commissioner’s Employment Practices Code on monitoring employees clearly envisages employers undertaking this type of review – whilst emphasising that it must always be justified and proportionate. UK employers should always bear in mind the relevant data protection principles and the provisions of the Code when monitoring employees’ communications.’

The response should be about ‘the means justifying the ends,’ says Mike Patrick, senior associate at Farrer & Co. ‘The ruling simply tells us what we already knew: if an employer is going to look at an employee’s personal messages, it will have to justify the intrusion into their Article 8 rights [to a private and family life]. The action does not give employers unimpeded rights to your private information. It has to be reasonable and proportionate.’ For example, blanket monitoring, 24 hours a day, seven days a week, is unlawful.

Monitoring internet usage on work systems is about striking a careful balance between two different rights – the privacy right of the employee and the legitimate right of the employer to ensure that everyone is working how they are supposed to, says Marc Dautlich, partner at Pinsent Masons.

‘It’s curious that [the case] has got quite so much coverage in the press,’ he states. ‘It is an opportunity to restate that, for an employer, it is okay to monitor what [employees] do on work systems but you have got to have a decent policy in place and you have got to make it easy for your employees to find and understand.’

But Dautlich warns: ‘There’s a lot of survey evidence that says that when people think they are being watched, they behave differently, not necessarily in a good way.’