The legal consequences of being a 'keyboard warrior'

4th September 2020 Media Law

Over the course of recent weeks, myself and my colleagues have found ourselves poring over data produced by the Ministry of Justice and relating to the frequency and types of cases reaching the Royal Courts of Justice.

Among the courts featured is the Queen's Bench Division, a branch of the High Court dealing with a variety of matters including contractual disputes, personal injuries and breaches of the Human Rights Act. It also has jurisdiction over media and communications claims, including defamation cases.

The latest figures show that the number of defamation claims has almost trebled in the course of the last three years. In addition, almost one third of the 323 such claims made in 2019 were worth more than £50,000.

As I explained to the Daily Telegraph, I believe that the increase is connected to the widespread use of social media.

JMW's experience of handling defamation cases has helped to inform that opinion.

We now deal with 90 per cent more defamation cases than we did in 2018 and many of those involve all the main social media platforms.

In previous generations, defamation disputes often arose out of articles published by the mainstream media, the many print and broadcast outlets upon which we relied for our news.

Now, everyone with a social media account is effectively a publisher.

The critical difference is that they do not usually have a legal filter between generating content and that material reaching the public domain. This ‘legal filter’ is of course a resource which professional publishers often do have at their disposal in the form of an in house lawyer or legal team.

The lack of ‘filter’ means there is essentially nothing to prevent defamatory comment making its way before a worldwide audience in seconds, with all of the complications and problems that can create.

Some of the people responsible for offensive posts maintain that they had not realised that they had done anything wrong.

Yet we have acted for businesses who have been targeted by demonstrably unfair online reviews and individuals subject to smear and harassment campaigns on social media.

Most of those affected simply want to ensure that negative posts are removed and will not be re-published in future perhaps together with a letter of apology. Others feel that the impact on their reputations, and the reputation of their business, is so great that they wish to pursue a claim for damages.

Successive governments have introduced legislation in the last decade which has arguably made it more difficult to challenge overly critical or unfair comments made online. For example, those targeted must evidence "serious harm" to their reputations in order to substantiate a claim. Businesses must also demonstrate that they have suffered "serious financial loss".

Even so, the Ministry of Justice statistics make clear that there are many individuals and organisations who feel that they are able to do just that and pursue their critics in court.

With that data as a backdrop and our great reliance during lockdown on the internet and social media platforms which can be so very useful and yet damage reputations in seconds, I wonder whether that pattern of more defamation claims is likely to continue into the future.

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Laura Wilkinson is an Associate located in Manchesterin our Commercial LitigationMedia Law departments

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