Tips from Louis the Lawyer – Social media and defamation

THERE are many
misconceptions about what
constitutes defamation and
what the defences are.
If a party (A) alleges he/she
has been defamed by another
party (B), A has to prove the
following: That the statement
refers to A; that there is
publication/communication to
a third party; that B has the
intention to defame A; that the
statement is wrongful; that
the content is defamatory; the
causal connection between
the statement and damages
suffered; the quantum.
Publication to a third party
includes communication by the
defendant B to a third party.
This includes statements in
an e-mail copied to various
parties and any form of social
media. Publication need not
be intentional – a person may
be held liable even for the
unwitting dissemination of
defamatory matter. This means
you have to be extremely
careful not only about what
you say but to whom you say
it, who you share it with and
how you share it. For example,
is it marked as ‘private,
confidential and for the
recipients’ information only’?
A statement is considered
to be published not only by
the person who originated
it, but also by anyone who
subsequently repeats it,
making the liability for
defamation potentially very
wide.
The allegation that someone
is a rapist is undoubtedly
defamatory in law. Both the
people who originated it and
those who shared or retweeted
it are potentially liable.
Here’s a drastic example:
Maung Saungkha is a poet
turned activist who served
prison time over a satirical
poem he posted on Facebook
in 2015. The poem was
deemed by a court to be
an insult to the president
of Myanmar, despite the
president not being named. He
served six months.
More about elements that
comprise proof of defamation,
namely intention and
wrongfulness, will be covered
in the next insert.