Deji Olunlade: #Defamation – How social media can put you in trouble (Y! Legal)

by Deji Olunlade

How expensive can that Twitter, Facebook, LinkedIn, Instagram picture, comedy skit, musical recording or cartoon illustration post be?

You are heartbroken and just betrayed by your boyfriend and you feel vengeful and retaliatory, what then did you do, you log on to twitter or Facebook and take out your frustrations on them portraying them in bad light or post pictures calculated to injure their reputation or you are a politically frustrated figure and decide to paint your present or former political party as being terrorists or lacking humane face, you may want to think deeply about it. These people discover the ridicule and contempt they have been subjected to, they are bitter and not impressed, you will probably find yourself in the court room.

You may feel protected under the guise of being online and think you are free from liability, you are totally wrong.

By this write-up, users of social media are being urged to rethink what they post as comments on various social media fora as these can be subject to law suits with substantial damages awarded against the authors. Ordinarily, a lot of social media users believe that the internet being without regulations especially in Nigeria may use such media to discredit or malign people they may have an axe to grind with.

While many Internet users believe that they are free to say and do as they like while on the Internet, this is untrue and the same defamation laws and regulations stand for online defamation as they do in any form of media.

This is not necessarily the case as the law regulating defamation has been shown to be applicable to the internet and social media as well. A thorough check on the articles and comments sections of various blogs and websites reveal that a lot of people just make comments without minding the truth or falsehood of such statements. Examples of such abound on retail blogs and their comments section.

It is now inevitable that defamatory actions will flow from the use of social media since this is the method being used to freely communicate in this generation with the erroneous belief that the internet is immune from legal regulations.

Recently, in Australia, a certain acting head teacher in Orange High School in regional NSW, Christine Mickle, sued a Defendant, Andrew Farley, the son of the substantive head teacher of the same school. Andrew Farley was a former student of the school even though he was not taught by the Plaintiff. Andrew Farley had caused several defamatory statements to be published about Christine via his twitter handle.

Farley, published a number of defamatory and abusive posts on Facebook and Twitter about Christine.

Others contributed to the conversation. However, one of the friends warned:

“You’re all entitled to your opinions. I in no way am arguing with that. But be very very VERY careful what you post on public media.”

Farley then responded:

“Like I said I can post whatever the fuck I like and if you don’t like it block me so you don’t have to read it. I don’t give a shit … if any one gets hurt over what I have to say about her.”

The Defendant had 63 followers on Twitter. These included media outlets, local businesses and school students.

The tweets and posts were brought to the Plaintiff’s attention by the principal of the school after it became clear to her that the matter had spread to students, parents and others outside the school community.

Christine had also built her career spanning over thirty years and the statements tweeted by Andrew caused her great distress and damaging consequences.

After the hearing of the case, Judge Michael Elkaim awarded the Plaintiff compensatory damages in the sum of $85,000. It was submitted that the extent of the audience to whom the matter had been published was by reason of the nature of social media undefined and inexact but due to the grapevine effect, was likely to be substantial within the local community and beyond and by reason of the internet, potentially permanent, damaging the Plaintiff’s reputation into the future.

The Judge stressed:

“That when defamatory publications are made on social media it is common knowledge that they spread.

They are spread easily by the simple manipulation of mobile phones and computers. Their evil lies in the grapevine effect that stems from the use of this type of communication.”

This case is a constant reminder to the social media community that defamation laws extend online and definitely, Nigeria will begin to experience litigation arising from discriminatory comments on social media. It’s also a reminder to the online community that defamation laws extend online; and it’s no surprise that we’re probably going to see more.

This leads us inevitably to when is a statement deemed as defamatory?

A statement can be said to be defamatory when the imputation of the statement tends to lower the other party in the estimation of right thinking members of the society or cut him off from the society, or expose him to contempt, ridicule or hatred or  injure his reputation in his office, trade, or profession or injure his financial credit. Also, there must be no legally justifiable grounds for uttering or publishing such statement. This statement must be:

  1. Untrue and may
  2. possess the element of imputation of crime to the person referred to,
  3. imputation of certain diseases such as sexually transmitted disease or communicable disease e.g stating falsely that a person has been inflicted with ebola
  4. imputation of unchastity or adultery especially of a woman
  5. imputation affecting professional or business reputation etc.

It should be noted that these defamatory words must have been published either through books, newspaper publications, video or voice recording, social media outlets and must have been read and believed to be defamatory by a third party (reasonable thinker).

However, online defamation is the publication of such statements made on any Internet based media including blogs, forums, websites, and even social networking websites. While many Internet users believe that they are free to say and do as they like while on the Internet, this is untrue and the same defamation laws and regulations stand for online defamation as they do in any form of media.

Therefore, the social media is not in any way different to other forms of publishing traditionally known and the mere fact that it is capable of being used by almost everyone will always assist in broadcasting thereby, occasioning added or further risks. It is advised that caution should be emphasized while posting on these networking sites because you may just be liable in the eventual outcome that a person is defamed by virtue of your post or comment. Furthermore, the act of re-tweeting, reposting or referrals may make you liable to an original post by a person defaming another party.

What to do when you are accused of defamation

While there are several defences that may avail a person accused of defaming another which ranges from justification to qualified privilege or fair comment. In order to defray tensions when you are accused of making a defamatory statement or comment, the best and appropriate way to act is to take down the offending post or comment and quickly render an apology. If you are lucky, you escape by your hairs but if you are not, you may end up incurring heavy costs in the court of law as damages. This is due to the fact that while it is easy to recant statements made in a newspaper or other traditional means of publishing, it is very difficult to clean up statements on the internet as this could have been multiplied on various websites and search engines.

Ways to avoid Defaming on Social Media

Understand that most things posted online is not usually limited to you and the intended recipient, it usually goes out to the public.

Avoid saying or posting anything on social media that you may reasonably suspect may land you in Court for liability on defamation.

If you believe that your statement is justified, feel free. But if you entertain doubts, it is best you refrain from posting such.

Finally, with the advent and frequent use of social media, ordinary individuals have now become emergency publishers on social media celebrities with growing loyal base, therefore, it will be totally false to think that they will not be subjected to the average regulations that news outlets and other individuals are subjected to.

That split second or overly emotional period that you are itching to share an information without regard to its authenticity may really be too expensive for you to handle.

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‘Deji Olunlade is a legal practitioner, a graduate of the University of Lagos and experienced in full time dispute resolution mechanisms with an uncanny ability of proffering simple solutions to complex legal issues. He is passionate about using the instrumentality of law to advance sound social, political and economic/business discourse.

Op-ed pieces and contributions are the opinions of the writers only and do not represent the opinions of Y!/YNaija.

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