In 21st century society today, defamation of character via the posting of libellous statements online has become as easy as pushing a button on a phone screen. The role that social media now plays in the facilitation of this UK civil law issue is phenomenal, as it provides a platform that basically allows individuals to say whatever they want without any sanction or oversight. Article 10 of the 1998 Human Rights Act declares that “everyone has the right to freedom of expression.” We each possess the right to express our own thoughts and feelings as well as the right to post them online for others to analyse and appreciate, but issues arise when these published statements become defamatory and harmful in nature, and ultimately are held responsible for damaging an individual’s reputation or even ruining their livelihood. A balance must be struck between deciding what type of language is essentially just expressing an opinion or is simply availing of one of our indispensable human rights, and what is detrimental, corrosive and career-destroying for whoever is on the receiving end of this type of online communication.
Achieving a successful claim in defamation law within the UK has a specific requirement of “serious harm,” a condition that explains how a statement is not defamatory unless it has (or subsequently will) cause significant damage to the reputation of the claimant, as laid out in the Defamation Act 2013. This requirement can hinder the compensatory process for many claimants, as proving that they have actually experienced detrimental harm as a result of a statement posted to social media is likely to be tough. The link between online communication and direct harm is a misunderstood, 21st century issue where jurisprudence is still continuously developing. It is not physical, verbal or arguably even emotional in nature, it is entirely reputation-related and a tarnished claimant’s name must occur as a result. Unfairness is a common theme throughout defamation claims, as although this “serious harm” requirement may not always be met, having vulgar, defamatory, and often untrue statements posted about you online is undoubtedly more damaging than each of us may initially anticipate.
One of the most relevant, and famous, UK cases regarding this topic involves Rebekah Vardy suing Colleen Rooney for defamation in her “Wagatha Christie” case. In Vardy v Rooney, the claim was brought forward as a result of a post published by Ms Rooney on her public Instagram account, where she named Ms Vardy as the one who leaked stories about her to The Sun newspaper. The case was dismissed as Ms Vardy was found to be a party to the accused story-leaking activities, meaning Ms Rooney’s post was not defaming in nature as its’ content was entirely true. This adds another layer to the successfulness of defamation claims, as truth also plays a major role in judicial decision-making. Even if a statement is damning and critical in nature, can it still be considered defamatory if it is actually true? Truth is a defence to an action of defamation, as stated in the Defamation Act 2013, but is it morally acceptable to allow the act of exposing an individual’s private, possibly demeaning information to become exempt from liability simply because it is protected by the fact that the information is true? Social media provides a space where the line between what is true and what is false is blurred, meaning that, essentially, users are at risk of believing every single thing they read online thereby facilitating the defaming process.
The ability to speak your mind without being subject to censorship or undue influence has not always been as easy to achieve as it is today. That is for certain. Social media has transformed how we communicate, enabling us to speak freely to one another with no barriers to transmission or filter. Freedom of speech and expression are rights that young people in the 21st century are entirely unaware that they have complete access to, and is something that past generations are just not accustomed towards in the same way. Social media access for younger age groups has taught them how to use their virtual voices, but contrastingly has made them desensitised to what is defamatory and what is not. I do believe that the mixture of uncontrolled access to platforms, ill-education of young people’s presence online and the toxic notion of believing everything you read on the internet will all combine to significantly raise the number of defamation claims brought forward in the future. Social media undoubtedly has the power to ruin reputations; and it is one that should clearly never be underestimated.
Defamation claims within the UK, regardless of their contemporary nature and extreme relevance to the growing popularity of social media platforms today, have surprisingly dropped by 60% in number between 2021 and 2022. There is largely one explanation for this, the prohibitive cost of legal action. Claimants bringing forward a case against a defamatory statement will incur substantial legal fees even before the matter gets to court, highlighting yet again the inherent unfairness of the current legal system and how justice is only accessible to the wealthy. The ever-increasing power that social media provides its users with must be subsequently assuaged by an increase in the enforcement of the inherent right to defend yourself from defamatory language.
Despite the high profile of this emerging area of media law, a major question mark remains over the ability of victims of defamatory allegations to protect their name and reputation from harm’s way. One thing is for certain, social media has created an entirely new domain for communication and free speech, but progression in this space does not come without its consequences. Debate and discussion are likely to become far more relevant in this area of defamation law and this highlights a vital sphere for reform, one that is ultimately key to ensuring that jurisprudence is kept up to date with our contemporary and digital world.