DEFAMATION IN THE DIGITAL AGE
The advent of technology has somewhat overhauled how people communicate with each other. Even the most basic forms of verbal communication have taken a different turn as verbal communication can now be passed across people without them seeing physically. More so, things are said from day to day by putting up posts on social media networks.
The advancements have made it difficult to expressly tell when a person finds what is communicated to them offensive or appalling. The law makes provisions on what amounts to offensive and the Courts have not been shy about giving decisions that have acted as guiding principles over the years, so, what a person could type and feel is a harmless message can be contrary to legal provisions. It goes as far as ensuring that every person owes their audience the responsibility of taking into consideration the effect of what they say and the degree.
In this discourse, the use of the word “say” or describing the same includes both verbal and written forms of communication. We will be looking at defamation in the light of digital communications, this will ensure that before you post or repost some form of material or publish an article about a competitor, you may have to double-check to ensure that they are not offensive, amount to unfair competition practice or defamatory.
Defamation is the act of injuring a person’s character, fame or reputation by false and malicious statements. It refers to false statements about a person communicated as fact to one or more persons by an individual or entity (this could be a person, company, newspaper, magazine or other organization, which causes damage and does harm to the subject’s reputation in the public.
The general harm caused by defamation is identified as ridicule, shame, hate, scorn, belittlement or being held in contempt by others as a result of the false statement. Generally, defamation can broadly be categorized into two forms:
The distinctive feature between these two categories is that libel is in written form while slander is verbal.
Generally, defamation falls under the law of torts which is an arm of the law that covers civil wrongs. A tort is an act or omission, other than a breach of contract, which gives rise to injury or harm to another and amounts to a civil wrong for which courts impose liability. In other words, a wrong has been committed and the remedy is money damages to the person wronged.
DOES ONLINE DEFAMATION DIFFER?
The effect, criteria and description of standard defamation are the same with online defamation. Online defamation arises where defamation occurs through online activity or on an online platform where false statements are written or published through online mediums to harm the Subject’s reputation online and in person.
The written words or words that were spoken in the online medium (like an online live video) are usually negative or false. An area where online and digital information differs is that it can be more sensitive because content on the internet spread faster between multiple users. Thus, online defamation can cover a wide range and travel farther distances than normal defamation.
This form of defamation has become a problem in this digital age because defamatory content can spread fast and this can best be described in digital terms as content going viral. The immediate effect of content getting viral is that it becomes harder to take back because users can take screenshots, screen recordings or even download the post and repost it.
WHEN DOES ONLINE DEFAMATION BECOME ACTIONABLE
Some basic elements make an act of defamation complete and they will be reviewed below:
THE STATEMENT MUST BE A LIE
It should be noted that not every negative or supposedly insulting statement made about a person amounts to defamation. Thus, the first element of a defamatory act is that the statement must have been untrue, no matter what extent of freedom of speech a person is exercising, there is always a boundary which protects the other party from an overreaching exercise of that person’s freedom of speech and expression.
Where a person utters a statement or releases a statement, the question to be asked is if that statement is legitimate. If the statement is true, it may not amount to defamation but where it is specifically doctored or created to harm the reputation of the other person (the subject), it can be defamation.
To prove defamation, one must be able to prove that the statement was, in fact, untrue and that untrue statement had some damning effect especially where a party is seeking special damages; such negative effect must have caused some other form of loss asides from a taint on the reputation of the subject (for example, economic loss) and that will be examined in the next point.
Where a person has passed some alleged defamatory statement on to members of the public, the determining factor will also be whether or not people believe the statement(s) and believing is not enough, the effect of members of the public believing the statement must have caused some form of injury to the person’s reputation.
Some questions that one can ask if the statement caused some form of economic loss, members of the public holding you in contempt, a downturn in business activity and profit, has it caused some physical damage to you like a cardiac arrest or a miscarriage to mention a few. The fact that Mr A creates a post on the internet that your delivery company has just 10 motorbikes instead of 11 does not immediately mean that it is defamatory, do people believe that you have 10 motorcycles? And if they believe, you may not have suffered any injury yet until there is some form of loss like a lower reputation for your business or losing some clients.
On the other hand, if Mr. X makes a false statement that your delivery company has a track record of destroying people’s merchandise and the post goes viral, as a result of this, clients stop patronizing and your company runs into a huge loss. These are actual injuries that can warrant an action.
Defamatory statements can be passed now and then between people or about people (people here covers both individuals and corporate bodies), however, where there is no witness or the existence of the statement cannot be directly traced to be from the creator of the statement, it becomes a scenario under the law known as “hearsay”, basically an “I heard that X told Y who then told Z” situation.
Generally, for online defamation, recorded statements or posts are easier to preserve for a defamatory action but they will not be entirely useful unless there is information regarding who wrote the statement and who read, accessed or downloaded it. People must have viewed, liked or commented on the post and this counts as substantial for a defamatory action to succeed.
There must be an identifiable third party who saw, read or viewed the defamatory statement and is available to testify about it.
PROVING DEFAMATION IN COURT
The most important point here is to prove that there was a publication of the statement, the publication was viewed by third parties and some of the third parties’ notion about you was altered in a negative way. It is not enough to infer, presume or imply that because a post is on the internet, people have viewed it where there is no way to prove or identify whether or not people have viewed it. An example is an information on a website that does not have the option for people to like neither does it show the number of views. Scenarios like these can be harder to prove because the burden will be on the Claimant alleging defamation to prove that it was viewed.
From the above, the basic ingredient needed to prove defamation is that the publication of the statement which must have been read, accessed, viewed or downloaded by third parties. Asides from this, it is not relevant if the statement was made intentionally or not or whether it was made out of anger, as long as it is published, it was read or viewed by identifiable parties and there was damage to the reputation of the subject, it is sufficient to prove defamation.
HOW TO MEASURE REPUTATIONAL DAMAGE
Proving online defamation may sometimes be a game of numbers but not in all cases. A tweet that has 20000 retweets is more likely to succeed in a defamatory claim than one that has 20 retweets. Does this mean that lower reach or coverage automatically writes off defamation?
It is not simply a game of numbers but the magnitude of the damage or the reputational harm is immense. For example, making a false tweet about a popular public figure or company which seriously jeopardizes their person or business activity can succeed even if it has few likes, views or retweets as the case may be. Also, the tendency to cause continuous harm can be an important factor. (Alleging that a person committed the act of rape which causes him to lose his job and marriage even though the post had ten views and as a result, the claimant has suffered stress and trauma will amount to defamation).
REMEDIES FOR DEFAMATION
Damages for defamation are intended to compensate for damage and injury done to the reputation of a person and other special damages that were occasioned from the publication of the defamatory statement.
Injunctions can be ordered by a Court to stop, forbid, prohibit or expressly ban the continued publication of the content or statement where more damage can be caused before the Court reaches its decision. An injunction is an order given by a Law Court prohibiting a person from committing a particular act or continuing to commit a particular act. This will depend on the circumstances of each case. Despite the claims of the publication of defamatory materials, the court will be wary of granting an injunction until the allegation of defamation is proven.
EXCEPTIONS AND DEFENCES TO ONLINE DEFAMATION
Minor errors in reporting, such as publishing a person’s age or title inaccurately or providing the wrong address.
Governmental bodies due to the premise that a non-personal entity cannot have intent.
A statement of opinion which was arrived at based on accurate facts, which do not allege dishonorable motives by the person about whom the statements were made.
Where it is proven that the statement was true.
Although there has been a shift in the means of communication in recent times, this does not essentially mean that responsibilities, courtesy and obligations which we owe during physical interference are put aside. Best internet manners must be employed when putting up posts or using the internet for communication because after all, communication is not exactly what we say or what we intend but how we make others feel and what they see. Conclusively, all users of the internet and online technology ought to regulate how they communicate with others to ensure that damage is not caused to any other person.