Katie Price has recently returned to tabloid headlines, this time in a brutal public spat involving her ex-husbands, Peter Andre and Alex Reid. The pair have each released damning statements and video footage on social media, seemingly with the sole objective of tarnishing Price’s reputation. In the past, the parties have not shied away from legal proceedings. In 2009, Andre launched a defamation claim against Price in response to remarks she made during interviews with Heat magazine and on the Graham Norton Show. The parties eventually reached a settlement in which Price publicly apologised and agreed to pay substantial damages. Fast forward 15 years and the long-running feud continues, albeit now in the digital sphere. 

Whilst it is not clear whether the parties will be initiating libel proceedings against each other this time, one thing is for certain: the new era of digital media has introduced some significant challenges to preserving and managing a person’s reputation, both from a legal and practical perspective.

Digital media: a new landscape
The exponential rise of digital media has had a monumental impact on reputation management and the legal framework that is designed to safeguard individuals, whether in the context of bringing or defending a defamation claim. In today’s hyper-connected world, people can broadcast content to widespread audiences in an instantaneous and uncensored manner. The effect of this is twofold. On the one hand, individuals’ reputations are more exposed and therefore susceptible to attack from keyboard warriors at any given moment in time. On the other, the ease of publishing content comes with serious legal responsibilities. Individuals posting, reposting or otherwise publishing content can unwittingly find themselves on the receiving end of a defamation claim, whether intentional or not. Emotion fuelled keyboard rampage, can have significantly damaging and expensive legal consequences. 

Then and now
Historically, most defamation cases were traditional media claims brought against mainstream publishers and journalists. By way of example, Associated Newspapers Ltd paid “substantial” damages and costs to Jo Wallace, the global creative director of Wunderman Thompson, over articles in 2021 that wrongly accused her of being in a sex discrimination case. However, since the advent and subsequent explosion of digital media, the reputation management landscape has evolved significantly. 

With the rise of social media platforms such as Facebook, Twitter (now X), Instagram, TikTok, YouTube and others, this legal issue has taken on new dimensions. Defamation, once primarily a concern for newspapers and broadcasters, is now a risk for anyone with a social media account. Whilst it used to be traditional media and professionally trained journalists and editors who published content that related to individuals’ reputations, we now find ourselves in an era of ‘citizen mass publication’. 

A significant percentage of the population is using social media for both personal and business use. Most of these individuals have no sophisticated legal knowledge and are effectively seizing the megaphone to transmit their views and opinions to an audience that is frequently far beyond the scale of remit of the national newspapers. Whilst many publications lack traction and fade quickly, others (often unexpectedly) “go viral” or “trend.” The damage caused by a defamatory publication can be amplified by instant and rapid re-publication, which is often outside the control of the original publisher, the risks of which are seldom considered. The list of recent cases that have gone before the courts have included some extraordinarily serious and unfounded allegations (such as fraud, corruption, and sexual misdemeanours) which would simply not have featured in mass publication prior to the digital era. 

The old saying “today’s newspapers become tomorrow’s fish and chip paper” does not apply to digital media. In contrast to a printed newspaper article, which is static and can exist in a vacuum, digital media publications can not only go viral and reach international audiences but can also evolve from their original form in minutes. These posts can also leave a permanent digital footprint that can be retrieved and re-deployed later.

How does defamation law apply to social media-based claims?

The legal framework
Defamation law protects an individual’s reputation from unjustified attack. Whilst the Defamation Act, which came into force in 2013, applies to digital media as well as traditional publications, its application is proving to be increasingly challenging in the digital sphere. A defamatory statement is one which causes, or is likely to cause, serious harm to the reputation of a person or organisation. A defamatory statement published in written or any other permanent form (including online) is a libel, for which damages can be awarded, if what it says cannot be successfully defended. 

Challenges for the courts 
If there is a dispute in a defamation case about what the words published mean, the legal test is what an “ordinary reasonable reader” would think they mean. The difficulty with establishing meaning in a social media-based claim is that the words complained of are rarely static. Instead, they are often interwoven into a string of exchanges between different participants each with their own followers or subscribers. The practical effect of this is that the statements complained of are read by a range of different audiences and in entirely different contexts. This poses significant challenges for courts in determining whether words have a defamatory meaning or not. 

Similarly, in the case of a newspaper article, the starting point is that all readers will have seen the same version, which they will most likely have read upon publication. If they were to read it sometime later, the article and surrounding context will not have changed. In contrast, this approach does not work for social media, where readers will see the offending material in all sorts of different contexts. The material in question turns into an evolving conversation which is seen by readers at different points of time within that conversation. The court will need to consider further posts, external news coverage and material from other commentators as part of its assessment. Clearly, this is not a straightforward exercise.

Another challenge (for both the court and the parties involved) is where the defamation claim relates to tens or hundreds of social media posts. As the law stands, each post must be set out as a separate cause of action, and serious harm must be demonstrated for each. This is becoming increasingly common in social media-based claims and proving to be an extremely burdensome process for the courts.

Practical issues
Aside from the substantive legal issues discussed above, practical issues also commonly arise in social media claims. For example, uncovering the identity of the publisher can be difficult. There may also be jurisdictional issues where a publisher is based abroad. Whether a defendant is worth suing also requires careful consideration. In contrast to large news organisations, an individual defendant may not be able to pay damages or costs awarded in favour of a claimant.

Conclusion
Defamation cases arising from social media present real challenges for lawyers, courts and parties alike. It is crucial that individuals act quickly in (1) preserving evidence of any online material and (2) seeking professional advice if they are faced with, or wish to initiate, a defamation claim.

About the authors

Claudine Morgan
Morgan is a highly experienced litigator who acts for corporate and individual clients on a variety of commercial disputes destined for the High Court. Her work has a particular emphasis on contractual disputes, breach of fiduciary duties, shareholder disputes, D&O claims, civil fraud, breach of warranty, professional negligence, supply of services, and misrepresentation. Morgan leads the Cheltenham office’s role in the wider firm’s Women in Leadership Committee, to create a supportive cohort and environment for women in leadership positions. She is admitted to practise in England and Wales.

Hannah Gornall
Hannah Gornall has experience of the following: disputes involving breach of contract, misrepresentation, breach of warranty, directors’ and officers’ duties, professional negligence and all aspects of debt recovery and enforcement; advising on insurance coverage disputes, including business interruption insurance claims; specialist expertise in media, privacy, reputation management and data protection. Her clients operate across a range of sectors including banking, retail and leisure, technology and media. Gornall is admitted to practise in England and Wales.