Defamation law’s chilling effects on social media

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression. 

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Quirk invited me to listen to and watch Emma Sadleir speak about social media and the law last Friday. She took the Quirk team and a few guests (which included me) through South African law on defamation and how it related to social media. For the most part she dealt with fundamentals in our law and, at one point, she pointed out that, in her view, retweeting a defamatory tweet exposed the re-tweeter to a defamation claim alongside the original poster.

@emmasadleir “anyone can be sued in ‘chain of publication’”… “but there is a ‘innocence of dissemination’ defence” #UoQJozi

— justinspratt (@justinspratt) March 1, 2013

I don’t necessarily agree with Emma’s views but I agree that a court will likely see retweets as endorsements and will hold re-tweeters (and equivalent users on other platforms) liable for defamation because they clicked a button and shared a defamatory update with their followers or connections.

While I can understand the argument and agree there is merit to it, as well as the challenge that retweeting and similar sharing online potentially and exponentially aggravates the initial defamation, I don’t necessarily agree that it should be actionable on this scale.

If you look to recent cases, you generally see this issue arising in the context of politicians and sports personalities whose indiscretions are published online (usually Twitter) and disseminated rapidly. Embarrassed plaintiffs and applicants approach courts, indignant, and seek to silence the debates and expressions of schadenfreude. The courts, applying the law as they understand it to this new medium, grant orders which sometimes just seem to be out of touch with new realities. What concerns me about these cases is that simply applying these legal principles to this new, unprecedented landscape can, and often does, have a chilling effect on freedom of expression.

The social Web is an unparalleled platform for expression (both desirable and undesirable). It is absolutely used for undesirable purposes that include unjustifiably harming reputations, economically harming content creators by exploiting their work without their permission and harming systems around the world. At the same time, it is a powerful platform for previously disenfranchised voices which include protestors fighting oppressive regimes and consumers speaking out against irresponsible brands.

Applying conventional defamation law to these scenarios without developing a more nuanced and robust model of what should be protected free expression could have the effect of stunting what could otherwise be a radically transformative shift in our collective culture towards a more transparent and empowered society. A quote from the 1925 US Supreme Court case of Whitney vs California seems appropriate:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.

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