It’s a typical Monday morning and you are on Twitter on your daily tube journey to work, liking, commenting on, and re-tweeting articles that have caught your attention. Without, of course, any actual knowledge that they are true, and not, in fact, fake news. But surely you might think, “I am not the author of this potentially defamatory material, so I must be safe from any libel action"? Well most of us would be shocked to learn that this could not be further from the truth as so many Twitter users are finding out the hard way.
Rachel Riley twitter feud
The most recent Twitter users to experience this unfortunate lesson when tweeting have become the subject of a defamation action brought by Rachael Riley, a well-known Jewish television presenter who appears on countdown. She is preparing to sue around 70 Twitter users that she believes have re-tweeted and commented on defamatory material about her.
Ms Riley has been speaking out on Twitter about Jeremy Corbyn’s handling of anti-Semitism allegations within Labour ranks. Twitter users had been sharing and commenting on an article published by political blogger Shaun Lawson, which accused Ms Riley of harassing and slandering a 16-year-old Labour supporter who was involved in an online debate.
Gerald Llewellyn, a 49 year old barrister’s clerk from London, was one of the many recipients of a tweet from Ms Riley’s lawyers threatening legal action after re-tweeting the Shaun Lawson thread. “I was completely surprised when I received a message on Twitter from a solicitor who said he acted for Rachel Riley and he was instructed to commence a legal action against me”, says Mr Llewellyn. “He didn’t say which tweet of mine she was complaining about, but from swapping stories with other friends who received similar threats I think it was the Shaun Lawson thread re-tweeted without comment about a week or so previously. I gave the solicitor my email address and I am still waiting to hear from him 4 months later”. Mr Llewellyn also confirmed that legal action had in fact been started against a few of his Twitter friends.
Laura Murray, a member of Jeremy Corbyn’s staff has also recently taken to Twitter and tweeted “Rachel Riley tweets that Corbyn deserves to be violently attacked because he is a Nazi”. “This woman is as dangerous as she is stupid. Nobody should engage with her. Ever.” Ms Murray was referring to a tweet Ms Riley had recently posted on Sunday quoting left wing journalist and activist Owen Jones, who had tweeted in January after a neo-Nazi had an egg thrown at him. Ms Riley has also accused Ms Murray of libelling her.
Now to the law…
Libel is the publication of defamatory allegations in permanent form. A tweet is potentially libellous in England and Wales if it damages someone's reputation "in the estimation of right-thinking members of society". It can do this by exposing them to "hatred, ridicule or contempt". The defences to this are truth - if you can prove that the defamatory material was true, "fair comment" – if you can show that this was your honestly held opinion based on evidence, or that the material was privileged - for example if it was a comment made in Parliament or in Court.
Most people are alert to the consequences of making a defamatory comment and understand that being the original author of a defamatory tweet could be libellous. However, most are blissfully unaware that re-tweeting, and commenting on such a tweet could also be libellous and you may well end up a party to a libel claim and ordered to pay substantial damages in compensation.
A defamatory comment only becomes libellous once it has been “published”. Publication is not limited to the original author. If you re-tweet, this can also constitute publication from your personal name, and you are now a potential defendant to a libel claim being brought against you.
Jurisdiction has a big part to play if you are a defendant to a libel claim connected with a re-tweet. If you live in the UK (or another commonwealth country) you are subject to a far stricter regime than in the US.
In the UK the burden of proof is on the re-tweeter to show that the statement is true, which is virtually impossible, as re-tweeters generally know very little about the defamatory material they are inadvertently publishing.
It has even been found that “liking” and “tagging” on Facebook to be sufficient grounds for a defamation claim. In the case of Isparata v. Richter (High Court of South Africa) the Judge ruled: “The second defendant is not the author of the posting. However, he knew about them and allowed his name to be coupled with that of the first defendant. He is a liable as the first defendant.”
This is a stark warning to all the Twitter users out there. Think seriously before tweeting and re-tweeting, and if you can’t stop yourself from pressing that re-tweet button, then make sure that the word “allegedly” is in front of whatever comment is made!