3Instep • Social media – reputation management and defamation

Social media – Reputation management and defamation

Reputation is everything. A positive reputation takes many years to build, but it can be destroyed in an instant. Digital media and the exponential growth of social media have increased the variety of ways in which reputation can be attacked – often repeatedly, anonymously and from various sources. Education institutions are increasingly falling victim to this type of unlawful behaviour.

4 Instep • Social media – reputation management and defamation

Risks to education institutionsEducation institutions have embraced the social media revolution as an excellent way of marketing their institutions and also as a method of communicating with teachers, students and parents. However, social media also poses many risks to these organisations and they can often find themselves or their staff the unfortunate victims of defamation on the internet. Once a negative story breaks it can spread rapidly via social media and perhaps turn a minor issue into a major one. If material is posted onto the internet it can remain there indefinitely, causing ongoing damage unless action is taken.

The Eversheds reputation management team has seen a vast increase in the number of instructions in relation to defamation involving education institutions. Most of these instructions seek advice about the removal of defamatory material from websites such as Facebook, Twitter, YouTube and online blogs. The subject matter of the defamatory material varies greatly, however, disgruntled students and parents in particular are increasingly using social media as a way to voice complaints about issues they have with members of staff and the institutions. These complaints are often completely unfounded or contain information which is false and can cause untold reputational damage and distress. It is therefore important that legal advice is sought quickly in order to strategically manage the risks and have the material removed from the public domain.

5Instep • Social media – reputation management and defamation

What is defamation?In the eyes of the law, a person is allowed to express honestly held opinions and it is accepted that there is an interest in public debate within the law and there are issues that can be legitimately and openly commented on. The law on defamation is useful to deal with statements which cross the line of legitimate public debate and are untrue. It should also be noted that an “insult” or mere “vulgar abuse” is not defamatory although this type of behaviour could potentially be dealt with by other means, such as harassment (if the statements meet the relevant legal criteria).

A defamatory statement is one that damages the reputation of someone “in the estimation of right-thinking members of society generally” and it can do this by exposing them to “hatred, ridicule or contempt”. A claimant must establish that the words are defamatory, identify or refer to the claimant and are published by the defendant to a third party.

When individuals post material on social media websites, they act as publishers and their publications are subject to the same laws and can be held liable in the same way as professional publishers of newspapers or broadcasters. Even if an individual repeats or “re-posts” material which was originally written by another, then they can still be liable in defamation. It is no defence for someone who has repeated defamatory material to say that the statements were already in the public domain and originally made by someone else.

Remedies for defamationDefamation is a civil offence and the main remedy is damages and in some serious cases an injunction can be sought. However, in practice the primary remedy that an educational institution would desire is to have the defamatory material removed from the public domain as soon as possible in order to limit the damage to its reputation.

The primary cause of action will usually be against the original editor and publisher of the defamatory material (e.g the student or parent). However, under defamation law,

where defamatory and unlawful statements are hosted on the internet by a third party such as an ISP (Internet Service Provider) or a social networking website, that third party can also be held liable for such statements if it is placed on notice of the statements and it fails to take action to remove them. It is therefore generally advisable to contact the social networking website to put them on notice that the material is defamatory and request that it is removed. This is also a particularly useful tool where the identity of the original editor and publisher is unknown because of the use of anonymous or false social networking accounts.

Changes to UK defamation lawThere will be changes to the law on defamation and the Defamation Act 2013 is likely to be brought into force in the near future. This new law brings about a number of changes and should shift the balance in the law in favour of freedom of speech. The Defamation Act 2013 will also require claimants to show that they have suffered “serious harm” before suing in defamation, introduce new defences and may give operators and controllers of social media websites increased protection. This may make it more difficult to take action against publishers of negative statements and also social networking websites themselves. However, these changes in the law should certainly not prevent or deter a potential claimant, such as an education institution, from taking action in the appropriate circumstances.

For further information please contact:

Michael Clavell-Bate, senior partner

Tel: 0845 497 8221michaelclavell-bate@eversheds.com

Fiona Walker, senior associate

Tel: 0845 497 8288fionawalker@eversheds.com

David McDonald, associateTel: 0845 497 8018davidmcdonald@eversheds.com