#MeToo, naming and shaming: a risky business?

“#MeToo”: Five letters that have been tweeted millions of times in the past month, and demonstrate the enormous power of social media and how it can bring about change for the good.  The feeling of solidarity is a cathartic experience for many who have been the victim of sexual abuse, harassment or other forms of coercive behaviour.  Beyond this, the reach of the hashtag is already challenging outdated social values and societal norms.

But, what if a victim wants to go further and name someone they say has acted inappropriately towards them?  This article considers some of the potential legal issues arising from the making of allegations of sexual misconduct via social media.  Whilst it is primarily aimed at those who are considering publishing allegations, the principles equally apply to those who are the subject of such allegations.

The law

The making of statements online can, in certain circumstances, give rise to both civil and criminal liability.

A successful civil claim allows the claimant (i.e. the one complaining about what has been said) to recover compensation and legal costs from the defendant (the one who has made the statement).  The court may also grant an injunction that prohibits the defendant from repeating the allegation or similar allegations.  If an injunction is breached the defendant can be fined or imprisoned.

A criminal prosecution is usually brought by the state.  If the defendant is found guilty they can be fined, imprisoned or given a community-based punishment.

Defamation

Traditionally, the most common form of legal action arising from the publication of an allegation is defamation (in this case, libel which relates to permanent publications (e.g. written statements)).  Defamation is a civil ‘tort’ (wrongdoing), not a criminal offence.  Its purpose is to provide a remedy to individuals’ whose reputations have been wrongly harmed.

Defamation is a complex and often misunderstood area of law.  Indeed, because of its complexity claims can only be issued in the High Court.

One of the most important things to appreciate is that the law of defamation applies as equally to individuals using social media as it does to traditional print publishers and broadcasters.  In the context of defamation, the term ‘publication’ simply means the communication of a statement to at least one other person.

Naming an individual

A prerequisite for a defamation claim is that the statement refers to the claimant.  However, it is not necessary to name them; the test is whether a reasonable person reading the statement would understood who it referred to.  Where the statement is published to readers with special knowledge which would assist them in identification, the test is whether a reasonable person with that knowledge would identify the subject.  So being clever by not using someone’s name, but making it obvious who you are referring to, is not being clever at all.

Causing serious harm to reputation

Since the law changed in 2014 a statement has not been defamatory unless it has caused or is likely to cause ‘serious harm’ to the defendant’s reputation.  With serious allegations this can be inferred by the court (especially when published to a large number of individuals).  This will almost always be the case with allegations of sexual misconduct.

Where allegations of this nature are widely disseminated or ‘go viral’, the harm to the subject of the statement can be catastrophic.  Their reputation could be ruined: ostracised by friends, let go by employers.  In extreme cases they could be subject to vigilante action.  Their physical and mental health could also be seriously affected.

Whilst many will feel that those who have committed serious offences are fully deserving of such consequences, the burden in a defamation action will normally be on the publisher to prove that what they have said is true.  For that reason, the decision whether to publish a serious allegation against someone to the world should never be taken lightly.  Tweets and posts are composed in seconds, but can have life-changing consequences.   It follows that if you publish a statement of this nature that you cannot prove is true that you could end up in legal difficulties.  If a claim cannot be successfully defended, the level of damages for which you will be liable will be commensurate with the damage you have caused, and the associated legal costs may be far greater still.

What is it precisely you are saying?

The law of defamation is concerned with the meaning of words.  Not the meaning that the person making the statement intends to convey, but what the average person would understand the words to mean.

The #MeToo hashtag has been used to refer to sexual assault, sexual harassment, misogyny, chauvinism and sexism. Whilst all of these occurrences need to be confronted, they are not one and the same.  There is a huge difference between, say, rape (which is a grave offence that can result in life imprisonment) and the use of outdated and sexist language.

For that reason, it is extremely important that you don’t inadvertently suggest that someone has done something more serious, whether by use of a hashtag or by associating them with someone accused of something more sinister.

Getting it wrong/relying on others

Alleging that someone else has been the victim of ill-treatment can be extremely risky, unless you witnessed matters first-hand.  Even if there is no obvious reason to doubt the person, you cannot know for certain whether they have an ulterior motive or whether they are mistaken (either in relation to the alleged facts or in the language they have used to describe the facts).

In repeating or republishing a defamatory allegation – which could include sharing, retweeting or liking – you may be liable for any harm your version of the statement causes. It is no defence to simply say that you were simply repeating what someone else had said or to add the word “allegedly”.

There is of course a place for investigating and exposing wrongdoing committed against others. Good journalists do this all the time.  The law of defamation can provide a defence to allegations made in good faith – even where it can’t be proved that the allegations are true – where the publication concerns a matter of public interest and it is in the public interest to publish the statement.  However, it can be difficult to predict when this defence might succeed.  The law is based on common law principles that encourage verification/fact-checking, balance, and responsible journalistic techniques generally.  For instance, it will often be appropriate to seek comment from the person concerned before publishing.  They could provide you with evidence which undermines or calls into question the allegations.

Professional publishers take legal advice before publishing defamatory statements and even then, often take calculated risks.  The best advice is therefore to leave these things to professionals.  If you are considering publishing something that it is potentially defamatory it will often be prudent to take advice from a defamation solicitor beforehand.

The opinion/comment myth

Whilst the Defamation Act 2013 includes a defence of “honest opinion”, it is a complicated defence and, in many instances, it will not normally be sufficient to say that an allegation of sexual abuse or harassment is an opinion.  This is because such statements will often self-evidentially be statements of fact, not opinion (again, the test is what the reader would perceive and not what you intend).  In such circumstances, it is not good enough to respond to a defamation claim by saying “that’s just my opinion; I’m entitled to it”.

The defence may be more likely to succeed when commenting on true facts; for example, “I found John Smith’s speech on the role of women in society to be both sexist and chauvinistic”.

Truth: a defence, but some warnings

It is normally a complete defence to a defamation claim to prove that the defamatory imputations are substantially true.  However, as stated above, the burden of proof is on the defendant (i.e. the one making the allegation) to establish this on evidence.  In other words, one must do more than simply assert the allegations are true.  It is not for a claimant to disprove allegations.  This is known as the ‘presumption of falsity’.

Before one posts or tweets a defamatory statement they should consider what corroborating evidence there is to back it up.  Given the nature of such allegations (which are often unwitnessed), such evidence could be limited.  However, on occasions there might be good evidence that supports an allegation (e.g. text messages with the subject which confirm an incident took place).  Evidence that people agree with you because they have liked the post or added a supporting comment is not evidence of the truth of the allegations, merely evidence of the harm you have caused the subject’s reputation.  The law is not concerned with popularity contests.

In cases where the claimant has a ‘spent’ criminal conviction in relation to the subject matter of a defamatory statement, a defence of truth may not succeed where a statement is made maliciously (with the predominant motive to injure reputation).  This is a provision of the Rehabilitation of Offenders Act 1974 which is intended to allow offenders who have served their punishment to rehabilitate back into society.

The publication of true facts can, in certain circumstances, can give rise to different claims such as harassment and/or the misuse of private information/breach of confidence (see ‘harassment’ and ‘privacy’, below).

Limitation

A claim for defamation should normally be brought within a year of publication, although this deadline may be extended in certain circumstances.  Where a series of publications that are substantially the same occur, the clock will normally run from the first publication.

Myth-busting: Freedom of speech, freedom of expression and Article 10 of the European Convention on Human Rights

A common misconceived litigant-in-person tactic is to respond to a defamation claim with the assertion that they are entitled to say whatever they want because they are exercising free speech or freedom of expression.

“Freedom of speech” or “free speech” is a constitutionally protected right in the USA.  As a result of this US defamation law differs considerably to English law and is far more ‘defendant friendly’.  US defamation law has no bearing on English defamation law.

Article 10 of the European Convention on Human Rights establishes the right to ‘freedom of expression’.  However, crucially, it is a qualified right.  Article 10(2) provides that the right may be subject to conditions, restrictions and penalties prescribed by law that “are necessary…in the interests of ...the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence…”

The Courts are required to take into account both Article 10 and Article 8 (the right to private life, which includes the safeguarding of reputation) when interpreting the existing law.  If you are contemplating publishing an allegation online it is important to understand that these general rights and principles do not offer blanket immunity.

Libel damages

Damage to reputation in libel is ‘presumed’ provided the Court is satisfied that serious harm to reputation has occurred or is likely.  This rule exists because it can be difficult or impossible to prove damage to reputation; such damage is rarely tangible.

The purpose of a damages (compensation) award in libel are three-fold.  They are principally intended to compensate for injury to reputation and to provide something to point to in vindication.  Where reputational damage is established, damages for injury to feelings and distress are also recoverable.

The appropriate level of compensation will depend on the damage done.  The level of readership – including republications that were foreseeable (clearly retweets/shares are) – is a key factor, as is the seriousness of the allegation.  Allegations of sexual abuse are extremely serious and could attract substantial damages.

Where a claimant succeeds, a defendant will normally also be ordered to pay a defendant’s legal fees.  These will often run into six figures and, unless the defendant is insured or very wealthy, can result in the defendant’s financial ruin.

Defending a claim

A relatively recent example of a Defendant succeeding in justifying allegation of sexual assault was the comedian Freddie Star’s libel case (see Starr v Ward [2015] EWHC 1987 (QB))

Where a claim is successfully defended a Claimant will normally be ordered to pay the Defendant’s legal costs.  This will also apply where a Claimant issues a claim and subsequently discontinues it.

Defending a libel claim can be a gruelling experience and many claims settle because of this (notwithstanding the merits of the claim).  It is also expensive and even if an order for costs is made at the end, a party can only recover costs if the opponent has assets to meet them.

Mitigating a defamatory statement

If you have posted something you regret or are unsure about, the deletion of a post or tweet can sometimes limit the harm caused (although the effect of this will be limited where a statement has already been widely repeated).  In some cases, an apology or retraction will assist, although given that this might expressly or impliedly include an admission of liability it is extremely important to take advice from a specialist solicitor before responding to an allegation of defamation.

Harassment

A claim for harassment could be made as well as, or instead of a defamation claim. Harassment is committed where an individual engages in a course of conduct which they know or ought to know amounts to harassment.

The threshold for harassment is high.  It is behaviour which is – objectively - oppressive and torturous, rather than merely annoying or irritating.

Over the past decade the law of harassment has been applied to online ‘campaigns’ and ‘trolling’.  A campaign may be as simple as the repeated tweeting of a derogatory or abusive statement.

For a claimant there are a number of advantages in bringing a harassment claim:-

1. Truth is not a defence to a harassment claim. The issue is whether the conduct is reasonable or not.  Standing outside someone’s house with a megaphone every day of the week shouting “John Smith sexually harasses women” is likely to be deemed unreasonable even if it is true that John Smith has sexually harassed women in the past.  Whilst it would depend on the facts of the case, the same logic could be applied to an online campaign where these allegations are repeatedly tweeted or posted.

2. It is not necessary to prove serious harm or any harm to reputation. Whilst there is often an overlap with defamation, the tort is not concerned with injury to reputation.  Damages are awarded for distress and injury to feelings.  An injunction can be imposed to prohibit repetition of the conduct.

3. It is not even necessary to show that anyone read the statements. The question is whether the conduct was harassing and whether the defendant knew or should have known this.  Harassment may be established by unwanted communications to the claimant alone.

4. The legal process is often more straightforward, quicker and cheaper (in relative terms).

There is of course a general public interest in exposing wrongdoing and, depending on the circumstances, the making of allegations of sexual misconduct to the world could be held to be reasonable.  Much will depend on the manner in which the defendant is making the allegations.

Malicious falsehood and breach of the Data Protection Act 1998

The making of false statements can also give rise to claims for malicious falsehood.  Such claims can be brought where the person making the statement has a predominant motive to injure the defendant (which can be established by proving they knew the statement was false or were reckless as to whether it was true or not).  The tort differs from defamation in that it is not necessary to show that the statement is defamatory (although allegations of sexual impropriety normally are), but it is necessary for the defendant to show that the statement is false. Furthermore, save in certain circumstances, damages are not presumed, and actual financial loss must be proved.

Secondly, a claim under the Data Protection Act can be brought for the inaccurate, unlawful, unfair or excessive processing of personal data.  This could certainly include the posting of allegations online that make allegations of sexual impropriety.  The potential ambit of such claims is wide and not fully explored.  The tort has a number of advantages for claimants, not least its breadth and that it is not necessary to prove any harm to reputation or financial loss and that compensation can be awarded for distress alone.

There is an exemption under the Act for the processing of personal data for journalistic purposes.  To rely on the exemption, it is necessary to show that it was reasonably believed that the processing of personal data was in the public interest.

Privacy

The publication of information derived from a private relationship might give rise to a claim for the misuse of private information, and/or breach of confidence.  Information could include factual accounts (whether true or false), text messages and photos.  Such a claim can be defeated if it is held that there is an overriding public interest in the information being disclosed.  The law in this area is developing.  An allegation of serious wrongdoing might well be in the public interest, although in ERY v Associated Newspapers Limited [2016] EWHC 2670 (QB) an injunction was granted which prohibited the press from identifying that an individual was under criminal investigation.

Prospective criminal liability

Under section 127(2) of the Communication Act 2003, the sending of a message by a public electronic communications network that is known to be false is an offence if it is done to cause annoyance, inconvenience or needless anxiety.  In Chambers v DPP [2012] EWHC 2157 (Admin), the Divisional Court held that Twitter was a ‘public electronic communications network’.  Similarly, the sending of electronic communications which contain information which is false and known or believed to be false is an offence under section 1 of the Malicious Communications Act 1988 if one of the purposes is to cause the reader distress or anxiety.  Whilst these acts refer to messages, they are likely to include online publications, particularly ones that would be drawn to the subject’s attention (e.g. by tagging).  Crown Prosecution Service Guidelines suggest that those who encourage others to commit communications offences (they cite examples such as the creation of derogatory hashtag) might be committing a separate offence contrary to section 44 Serious Crime Act 2007.

The maximum sentence for an offence under section 1 of the Malicious Communications Act 1998 recently increased to two years.

Finally, harassment can also amount to a criminal offence punishable by up to six months’ imprisonment.

In short, do not make allegations that you believe to be false.  If you are sure they are true and are sure you want to publish them carefully consider how you go about this.

Consider the forum

If you have been the victim of an assault or harassment, there may be a more appropriate avenue for pursuing the matter than via social media.

Serious allegations of criminality should normally be made to the police to investigate.  Various forms of harassment are actionable, for example in an employment law context or under the Protection from Harassment Act 1997.  Damages can be awarded for harassment.  Damages can be awarded for personal injury, including sexual assault.  Depending on the circumstances, advice can be taken from a harassment solicitor, employment solicitor or personal injury solicitor.

It is also important to be particularly careful about what you publish online if you intend to pursue legal proceedings.  This is because the availability of online material may prejudice any future trial.

Worth the risk?

It is a matter of personal choice, but if your motive is simply to share your experience (rather than shaming another), naming a third party might be considered an unnecessary risk. If you are keen to publish then it is prudent to seek legal advice before you take steps that might be irreversible.