• Facebook added over 200 million users in less than a year
  • Facebook has more traffic on it than Google
  • If all the Facebook users were a country then it would be the third biggest in the world after China and India (and Facebook isn’t popular in China!)

There are other well known Social Media sites which have given individuals an unprecedented platform for their views. Some actors and musicians have more twitter followers worldwide than there are people in several European Countries put together. Top of the pile at the moment is Lady GaGa with nearly 23.5million followers, closely followed by Justin Bieber with nearly 21million followers.

What does all this mean?

The world has changed. Individuals can quickly share their thoughts and opinions with friends, family, colleagues and other ‘followers’ in a way that was not possible in the past. While few have the reach to share thoughts with millions, parents and pupils can have considerable reach within the local or school community. This can have serious implications if someone makes malicious comments via social media.

Social Media platforms and use have developed so quickly that society is struggling to keep up (consider recent cases of contempt of court where jurors have contacted witnesses or victims). It is only in recent months that the GTCS has published its helpful guidance for teachers on appropriate use of Social Media:

http://www.gtcs.org.uk/web/FILES/FormUploads/ecomms-social-media-guidance-pd.pdf

AHDS has been approached by a number of members who have been the subject of negative comments posted on social media sites by parents. In the past our advice (in relation to comments in the media) would normally be ‘today’s neswpapers, tomorrow’s chip wrappers’ – i.e. ignore it and the media will soon move on. Not a perfect solution but a practical one. This approach doesn’t apply to social media – once online, comments can appear to remain current, can be found through searches and can stay there for all time.

Most local authorities have a policy on social media. Most of these policies focus entirely on what teachers shouldn’t do on-line. Some allow or prohibit the use of social media in classes. Only one that we have come across to date addresses the issue of what to do if you or a member of your staff is the subject of negative comments posted by pupils, parents or others.

As an Association we have put together advice for members (see below) should they, or their staff, find themselves in this situation. We have asked local authorities what their policy is in this area. Where the policy has been lacking, we have asked them to incorporate at least the ‘practical guidance’ section from the end of our advice paper. Most local authorities that have engaged with us on this have been very positive.

SOCIAL NETWORKING SITES AND DEFAMATION

ON THE INTERNET

INTRODUCTION

The nature of the internet means that the click of a mouse can communicate a defamatory statement instantly to thousands of people throughout the world. This can pose a serious threat to the reputation of an individual or a company.

 WHAT IS DEFAMATION?

Defamation is literally the taking away of one’s fame and to be actionable the person must establish that the statement or communication is injurious in the sense of being capable of harming that person’s character, honour or reputation. A defamatory statement or communication, whether oral, written or posted on the internet is one which is false. However not all false statements are defamatory. A defamatory statement is also one that is offensive but again not every statement that offends is defamatory. A statement that the law holds capable of harming character, honour or reputation, is one which is derogatory or disparaging or demeaning or calumnious in the eyes of the reasonable person. Such a statement posted on a social media site or elsewhere on the internet is defamatory.

In a nineteenth century legal text it was said that injury to character may be caused in one of two ways:

Directly by the application to a particular individual of words or epithets tending to make him mean, disreputable, ridiculous or contemptible; or indirectly by the false imputation of such acts as may lower him in the estimation of the public, or make his society shunned by those with whom he is accustomed to associate.

Whilst the words used in that text may be somewhat antiquated, they are nonetheless appropriate to describe current day defamation, including defamation on the internet.

The other test which is often applied is Would the words tend to lower the person in the estimation of right thinking members of society generally? Applying this test, a statement or communication is legally defamatory only when, if believed reasonable or “right thinking” people would shun the person or think significantly less of him or her. The important point is that the person must be lowered in the estimation not of people generally but of what is described as right thinking people generally and it is the court that determines what right thinking people think. In other words the test is an objective one with the court determining whether members of society ought to regard a particular statement or allegation as calumnious.

Examples of the types of statements that right thinking members of society generally would find derogatory or demeaning are imputations:

  •  Of criminality.
  • Of immorality.
  • Of professional misconduct.
  • Of financial and soundness.
  • Against a person’s professional competence.

 PRACTICAL GUIDANCE

As soon as a potentially defamatory statement is seen, details of it should be copied or recorded along with other relevant information such as details of the author, the website, internet service provider and the parties to whom the statement was communicated. You should then get in contact with your AHDS Area Officer.

In all cases we recommend that members approach their local authority for assistance and request a copy of their Social Networking Policy or other relevant policy. We would expect this policy to include provision for the local authority to take the following steps:

–       The internet service provider or party hosting the site should be put on immediate notice to the effect that the comments are defamatory and should be asked immediately to remove the offending material.

–       The author of the offending material should be put on notice that it is considered defamatory and asked to remove it under threat of interdict/damages proceedings.

–       If the material appears on a site hosted by the local authority swift action should be taken to remove the comments.

Note: An action for damages for defamation (including malicious falsehood) must be raised within three years of the date when the defamatory statement first came to the person’s attention after which it will be time barred.