Can you be sued for a social media post? What PR pros need to know

In the last decade, the explosion of digital media has had a colossal impact on reputation management and the legal framework that governs it. Defamation cases have historically only included claims against mainstream publishers and journalists, however, in today’s hyper-connected world, defamation is now a risk for anyone with a social media account. When we post, repost or publish content, we can unwittingly find ourselves on the receiving end of a defamation claim, whether intentional or not. For PR and comms professionals, this presents both challenges and opportunities.

The rise of social media platforms such as Facebook, X, Instagram, TikTok, YouTube and others has added new dimensions to this legal issue. We can broadcast content to widespread audiences instantaneously and without censorship. The prolific use of social media on mobile phones also means that digital content can be published in a matter of seconds, often with little thought involved. While social media users can transmit their views and opinions to the world at large, most are unaware of the potential legal ramifications. Emotion fuelled keyboard rampage, can have significantly damaging and expensive legal consequences.

Digital media is largely self-published and therefore lacks the quality control afforded to traditional print and broadcast media. Our posts can leave a permanent digital footprint, retrievable and re-deployed at a later date. Digital media publications also have a far greater reach than the remit of traditional newspapers, particularly if social media posts ‘go viral’ or ‘trend’ which can reach audiences overseas. Defamatory publications can be amplified by instant and rapid re-publication, making it difficult to identify the original author or source of that publication. 

The application of defamation law to social media-based claims

As reputation management lawyers, we often have to apply defamation law to social media-based claims. Defamation law exists to protect individuals from unjustified attacks. While the Defamation Act 2013 applies to digital media as well as traditional publications, its application is proving to be more challenging in digital media-based claims. This is becoming increasingly evident as this new class of claims are coming before the courts.

The complexities of applying defamation law to social media-based claims are multifaceted, requiring careful consideration of various factors that can complicate legal proceedings. These challenges include:

Determine defamatory meaning

• The legal test for defamation seeks to establish what “an ordinary reasonable reader” would interpret the words to mean. Social media claims complicate this test due to the rapid evolution of the words in question.
• Words are often part of exchanges between different participants, each with their own followers or subscribers, making disentangling the material challenging.

Varied contexts of social media posts 

• Unlike newspaper articles, where all readers view the same version at publication, social media posts can be encountered in varied contexts.
• Courts must evaluate additional posts, external news coverage, and commentary from others, which adds complexity and can lead to uncertainty.

Series of social media posts

• Defamation claims may be based on a series of separate publications, requiring each post to be treated as an individual cause of action.
• Serious harm needs to be shown for each post, which can involve hundreds or thousands of publications, proving highly onerous for the courts.

Practical difficulties

• Identifying the publisher’s identity is challenging when posts are shared and commented on by many people.
• Complex jurisdictional issues arise if a publisher is based abroad.
• Consideration must be given to whether a defendant is worth suing, as individual publishers may not be able to pay damages or costs, even if a defamation claim is successful.

The landscape of defamation law has been irrevocably altered by digital media. As comms professionals, you are uniquely positioned to advise clients on the risks associated with digital media and defamation and play a pivotal role in managing reputational issues. You can play a crucial role in mitigating these risks by taking proactive steps with your clients. Start by encouraging them to implement clear social media guidelines to manage the content they share. Conduct regular audits of their online presence to identify any potentially harmful material early. Additionally, provide training on the legal implications of digital communications to empower them to make informed decisions. 

While the legal framework strives to adapt to the new challenges digital media brings, clients must remain vigilant and informed about the responsibilities and risks associated with their online presence. As digital media continues to evolve, so too must the strategies for managing and protecting reputations.

If your client is faced with or wishes to initiate a digital media-based defamation claim, it is essential that they take screenshots or otherwise preserve evidence of the offending post(s) at the outset. They should also seek professional advice from a specialist reputation management lawyer as soon as practicable.

Claudine Morgan (left) is a partner, and Hannah Gornall an associate, in the reputation management team at law firm Charles Russell Speechlys.