Sunday, 18 November 2012

Facebook Defamation

Facebook Defamation

As discussed recently, defamation on social media platforms, and more particularly Facebook, is becoming less of a phenomenon and more of a norm.  Statistics 
 released in the latter half of 2012 demonstrate that we are witnessing a seismic shift in our contact and connection methodologies. Even the American Bar Association has changed their Model Professional Rules of Conduct to include social media.

Amongst a few others, global law firm Corrs Chambers Westgarth recently commented on defamation in the social media context. A snapshot from Google analytics reveals that in excess of 500 000 people search terms associated with defamation, libel, social media defamation etc.   

What is defamation?  Simply, it can be defined as the publication of defamatory (libelous) material referring to a person. In a social media context, this would typically be, for example, a defamatory post or message on Facebook that directly refers to a person. For further discussion on defamation (libel and slander), look here.  

The other common language used to describe this cause of action in law is libel.  Without wanting to over simplify it, libel is in the written form and slander verbal, a more detailed analysis by the plain-language Wikipedia is here.

With this growth and dynamic landscape in mind, what do you do if you are defamed on Facebook?

Before giving some practical steps to consider if you ever find yourself in the middle of an on-line slugfest, consider a recent screenshot of the Facebook page below:

Social media defamation?

To give this image above some context, I am located in South Africa, a cultural and ethnic melting pot.   Many people in our society celebrate Diwali, the festival of lights.  This will typically involve many individuals setting off fireworks as part of their celebrations.  For more detail on Diwali, look here.  To make it crystal clear: I am not intending to debate any cultural or religious matters, merely the defamation and practical considerations that may arise thereafter.

So, in the midst of South African Diwali celebrations in Durban, a Facebook status (post) by Caroline Ashworth read as follows: “To the Indians who call this celebrating, seriously this is f***ing ridiculous! I hate you people letting off fireworks, so inconsiderate, you don’t’ deserve health, wealth, prosperity or any other thing that Diwali is supposed to bring you.”

It resulted in the creation of the Facebook page above, which to date, has 1257 “likes”.  One can reasonably infer that it has page views far in excess of 1257. Facebook will have these statistics, whether they will be available, that is another discussion all on its own…

In any event, this prompted the Citizen, a national newspaper, to report on the story.  East Coast Radio, a Durban based radio station, offered a view here.  Sponsors allegedly distanced themselves from the aspiring beauty queen and Ashworth reportedly removed the status (post) and offered an apology; a threatened march to a local police station to press charges against Ashworth does not appear to have materialized.   According to the Citizen, this issue, amongst a few other similar ones, has seen the South African Human Rights commission call for more caution on social media platforms.

For purposes of discussion, lets consider both sides of the equation.  Firstly, what could Ashworth do to protect her rights (as opposed to enforcing rights):

All users of Facebook are regulated by the Terms of Service.  In addition, a community set of standards is set out here.  One could consider the following:
  •                         Facebook has a Tools for Addressing Abuse page.  There are various mechanisms in place to state a claim of abuse / intimidation / harassment etc.
  •                         Contact the user in question and request /demand that he/she/it immediately take the Facebook site down.
  •             Request / demand an apology.

Now, lets look at the other side of the equation, i.e.:  what to do if YOU have defamed someone on Facebook:

  •              to take the offending group / page / post down.
  •             Offer to publish a reasonable apology, correction or clarification.  Note: exercise caution in your response (depending on the nature and severity of the issue, it may be that silence or no response is the better option). 

 If circumstances are drastic enough, only consider some form of compensation after discussing the matter with a trusted legal advisor or specialist defamation of character attorney.

These considerations will be similar across social media platforms. In order to avoid the emotional and financial drain associated with protracted legal action, whichever side of the equation you fall, it is often better to try resolve the matter as amicably as possible between the parties.  If litigation is a consideration you are looking at, act quickly, particularly in this environment.  For an excellent analysis and step-by-step guide to litigation arising from defamation on the Internet see this article by Gil Zvulony, Toronto Defamation Lawyer.

Social media platforms are generally user friendly and willing to accommodate any reports of abuse, hate speech, intimidation etc. Typically, in a situation like this, remain calm, remove your emotion and remember that you are communicating to a number of people you know, as well as an audience of strangers, which may be small, but it may well be enormous.


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