Are we dating the same guy? Part Three: defamation

This is the third of three articles exploring the legal issues arising from ‘Are we dating the same guy’ social media groups. The first article addressed the potential for misuse of private information, and the second article addressed data protection.

The groups are, by their nature, intended for the exchange of true information about the subjects discussed. While the publication of true information in these groups will more normally engage privacy or data protection rights, there are circumstances where a poster can stray into dangerous territory from a libel perspective as well.

A prima facie libel claim may be established if the imputation or meaning of the whole publication (as opposed to individual words or sentences) is defamatory. This means looking at the whole of a Facebook post and associated comments in context.. The publication of a piece of relatively innocuous information published visibly alongside other information could conceivably create a bear a defamatory imputation broader than that of a single comment had it been made in isolation – even if it might not have been foreseen by the person posting it. When determining whether a publication has a defamatory imputation the test is what the reasonable reader would understand was being said, as opposed to what the writer intended. Many libels are committed by accident.

Below we look at a hypothetical example of an exchange of information – within the spirit and intentions of these types of groups – which could give rise to an accidental libel.

The situation

A poster asks about Joe Bloggs, saying she has started dating him and wants to check whether he is also dating other women. Two women respond in the comments, saying “I am also currently dating this man”.

The issue

Three group members (the poster and two commenters) saying they are dating the man would not appear – in isolation at least – to cause any issue in defamation at all. However, when the entire post/thread is considered as a whole, a new and different imputation emerges. It would certainly be arguable that the imputation is that Mr Bloggs is a womaniser and cheat and is dishonestly sleeping with multiple women at the same time.

Complex legal questions then arise about who is responsible for the publication of the statement that conveys that meaning. Certainly, it is not the poster who started the thread: the original post had no other context against which such a meaning could be arrived at. But could it be, for example, the third commenter, as her statement is made adjacent to the original post and the first comment? This is known as an ‘innuendo’ meaning/imputation: where the subject claims that the meaning is different to people who had already read some other important piece of information (in this case, the original post and first comment).

The issue is complicated by how Facebook (or other social media platforms) present responses to posts: not every reader of the post will see the post (and its comments) in the same way – such is life in the age of algorithms that sort by opaque metrics of ‘relevance’, rather than in old-fashioned chronological order.

Of course, a poster who is able to prove that a defamatory imputation is substantially true will have a complete defence to any claim. In the above example, however, who may be accused of libel. In order for her to establish the substantial truth of the imputation, she would likely need to rely on the evidence of the poster and first-commenter, who are total strangers to her, and may be unavailable or unwilling to give evidence, or may be generally unreliable or dishonest.

Other libel issues arising

Some of these groups (particularly those without strict moderation and rule enforcement) also seem to be a hotbed of character assassinations and general attacks – typically outside the stated intention of the groups. Posts that make direct allegations of wrongdoing, for example, will have the same considerations as any other potential libel claim, which are discussed in more detail here. All of the usual defences will also apply, in particular being able to establish the substantial truth of the meaning of the post/comment and honest opinion in respect of posts that more likely to be understood as opinion/comment that an assertion of fact.

Comment

Libel is often the cause of action that men in this scenario are most aggrieved by. That can be because they believed they had been dating multiple women openly and ethically, but had been accused of womanising or adultery nonetheless, or because a more general character assassination has gone far beyond anything the commenter could reasonably know to be true about him. However, privacy and data protection law (as discussed in the first two articles) may offer more straightforward legal remedies, aside from in the case of the clearest libels.