[Photo by Kaitlyn Baker from Unsplash]
By Bryan Boo
These days, it is common for us scroll through social media every available free moment we have, even if it is for mere few seconds. Imagine scrolling through social media and you discovered a post circulating about you that is untrue. Anger builds up and you want to take legal actions against the person who posted that post. Do you have legal recourse?
We had in our previous article discussed the legal repercussions of online posts. One of the repercussions discussed was civil defamation. This article discussed the civil cause of action of defamation in more detail in relation to online posts.
Types of Defamation
There are 2 types/forms of defamation:
- Libel – which is defamation in a tangible form such as written words, printed words, published words, pictures, images etc.
- Slander – which is defamation in a transient form such as spoken words.
As the focus of this article is on online posts, such content would be published on online platforms such as social media websites, blogs and forums. Hence, defamatory words published/posted on these mediums would fall under the category of libel.
Elements to establish slander
As with every legal suit, the Plaintiff would have to prove his/her/its case. In a legal suit for slander, there are 3 elements that the Plaintiff would need to establish:
- The online post published is a defamatory statement;
- The defamatory statement is regarding the Plaintiff; and
- The defamatory statement is published to a person other than the Plaintiff.
What then is regarded as “defamatory”?
Generally, a statement is defamatory when the words have the tendency to injure the subject’s reputation. At times, the words used in the published statement can be clearly understood to be defamatory by virtue of the natural and ordinary meaning of those words. However, there are times when seemingly innocent words may be defamatory as, while it may seem innocent to the general public, it carries a special meaning to the specific intended reader with that specific knowledge/experience. This is known as ‘innuendo’. For example, the sentence “My senior at work always goes to J’s Place” may seem like an ordinary statement. But what if this sentence was read by the publisher’s colleagues, who not only know that the publisher had only one senior but that J’s Place was actually a brothel? In this case, the publisher’s colleagues would interpret the sentence according to their special knowledge and hence, arguably, that statement could be defamatory.
For a legal action premised on slander, the defamatory statement must first be published. In the context of social media and online posts, it could be as easy as clicking the “Post” button. However, one must also be aware of the privacy settings of the post. Is the post set to “public”? Or is it only visible to a few specific people? While all is required is for the defamatory statement to be published to any one person other than the Plaintiff, the extent of the general public that can view the post is one consideration in determining the effects and impact of the defamatory statements.
Defences to defamation
There are a number of defences that a defendant in a defamation suit may raise.
A defendant in a defamation suit may rely on the defence of justification if the statements made were true or materially true. For example, if the statement reads “A was a thief” and A was indeed previously found guilty of theft and sentenced, then the maker of the statement would likely be able to rely on the defence of justification.
2. Fair Comment
The defence of fair comment is when the statement is an honest opinion of a matter of public interest based on facts proven to be true. To rely on this defence, a defendant would have to satisfy the following elements:
- The defamatory words must be comments/opinions as opposed to statements of fact;
- The comments must be based on facts proven to be true;
- The comments must be fair; and
- The comments must be on a matter of public interest.
3. Absolute Privilege
Where the statements were made in a situation where absolute privilege applies, then there can be no legal action taken against the maker of such statements. This includes parliamentary proceedings, judicial proceedings as well as police reports.
4. Qualified Privilege
The defence of qualified privilege is where the maker of the statement has a legal, social or moral duty to publish the statement to the specific person(s) and those specific person(s) have a corresponding duty or interest to receive such a statement. For example, statements made by an employee to the HR Manager regarding the alleged misconduct of another employee may be protected by the defence of qualified privilege.
Defeating defences in a defamation suit
While a defendant in a defamation suit may raise defences, one must always be aware that some of these defences may be defeated if the plaintiff can show that there was malice involved in the making of those statements. Defences such as qualified privilege and fair comments may be defeated if it can be proven that the defamatory words were published with malice.
The advancement of technology and the accessibility of social media has changed the daily lives of all of us as compared to the days before such access. One can easily type out a status or post on social media in seconds and the moment it is published, it is almost instantly read by a large number of people. As such, while it seems that the trend is to upload snippets of our daily lives for the world to see, or to rant and share our innermost thoughts with the world, we must exercise great caution or else we may be sued for defamation.