Martin Lewis to sue Facebook
Martin Lewis, the consumer campaigner, has announced that he intends to issue defamation proceedings against Facebook in respect of misleading advertisements bearing his name that have been published on the social media platform. It is claimed that many of the adverts show Martin Lewis’ face next to endorsements that he has not made. These include adverts for binary trading schemes that are viewed as scams by the Financial Conduct Authority.
The claim raises many interesting legal issues, including whether England and Wales is the most appropriate jurisdiction in which to bring the claim and Facebook’s legal responsibility for content published on its platform. Pursuant to section 9 of the Defamation Act 2013, a Court does not have jurisdiction to determine a claim against a defendant domiciled outside the EU unless it is satisfied that, of all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate place in which to bring the claim. This provision was introduced to counter the practice of ‘libel tourism’, whereby opportunistic litigants with limited connections to England and Wales would avail themselves of the English courts to bring defamation claims which had stronger connections to other jurisdictions. Under section 9, the Court is required to consider all the jurisdictions in which the defamatory statement has been published, in order to determine whether England and Wales is clearly the most appropriate. This will include determining the extent of publication in all relevant jurisdictions (i.e. how many times the statement has been read in each country), the claimant’s connections with England and Wales, the convenience of witnesses and the relative expense of suing in different jurisdictions. While the hurdle for suing a non-EU defendant is high, Martin Lewis’ strong connections with England and Wales will put him in a strong position in the event that Facebook seek to argue that England and Wales is not the most appropriate jurisdiction.
Facebook’s liability is perhaps a more complex issue in this case. It is likely Martin Lewis will argue that Facebook is responsible as a "primary publisher" because it has unreasonably failed to remove the adverts or there has been an unreasonable delay in doing so. While it is difficult to argue that Facebook should be liable for all and any content published on its social media platform, the position changes once it has been put on notice of unlawful content (as per Tamiz v Google Inc  EWCA Civ 68). The argument, in crude terms, is that Facebook exercises control over its social media platform and thus has the power to remove a posting by a third party; failing to do so in the knowledge of the defamatory adverts means that Facebook becomes liable for their continued publication. Closely related to the issue of whether Facebook is a primary publisher, are potential defences under section 1 of the Defamation Act 1996 and Regulation 19 of the Electronic Commerce Regulations 2002 which would also focus on whether Facebook was given adequate notice of the unlawful content and, if so, what it did, or failed to do, having been put on notice.
Mr Lewis has complained that the problem is ongoing. He brings the adverts to the attention of Facebook, but they keep returning with Facebook sometimes taking several weeks to remove them. In short, he says that they aren't doing enough.
Mr Lewis will also have to address section 10 of the Defamation Act 2013 which can provide "intermediaries" with immunity. A claimant must satisfy the court that the identify of the party who posted the adverts is unknown or, alternatively, that Facebook was effectively acting as a commercial publisher or editor of the adverts. If the latter limb is adjudicated upon this would be a landmark decision and could have far-reaching consequences on all forms of internet advertising.
Finally, whilst the press attracted to the claim has focused on this being a defamation action, the more appropriate cause of action is arguably "passing off", which is typically used in cases where a defendant wrongly holds themselves (or their product/service) out as being associated with the claimant.
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Articles are intended as an introduction to the topic and do not constitute legal advice.