The Business Exchange Swindon & Wiltshire June 2014 Edition

CREATIVE THINKING LIABILITY RISKS: DEFAMATION AND SOCIAL MEDIA The modern world presents an almost limitless opportunity to entrepreneurs who are brave enough to carve out their own new niche. For the first time since perhaps the industrial revolution it is possible for a niche SME leveraging a technological advantage to transform itself in to a global phenomenon. Who would have thought in 2004 that Facebook started in a university dormitory would become a Global force and that “Facebook” would be a commonly used verb or that Twitter formed in 2006 would take the Stock Market by storm less than a decade later? We live in a time of rapidly developing technology, improved communication, with better access to information and most importantly we have a generation who have grown up during this age and created a culture of innovation. However, whenever a business is pushing the boundaries and challenging convention they will encounter certain risks. These can vary from operational risks, challenges of trading in an emerging market place, vulnerability to economic change, scepticism and nativity from the establishment and financiers but also there are risks that such advances create in implementation. For instance, who would have thought that promoting ones products or services through Social Media could expose your business to libel actions? For example, recently England cricketer Kevin Pietersen accepted substantial undisclosed libel damages regarding a Specsavers advertisement which implied that he may have tampered with his bat during the Ashes. The advertisement was posted on Twitter perhaps to create a viral marketing buzz. Specsavers Optical Group Ltd accepted that Pietersen did not behave in the manner suggested, apologised and removed the advertisement from circulation, in addition to making the substantial settlement. A consequence that would hardly have been imagined when the marketing team conceived the tweet. An example such as this, relating to an established and presumably well-resourced business, begs the question - what are the risks to the SME sector and what should and shouldn’t a business be doing when it comes to “Publishing”? Helen Smith, Senior Solicitor and John Bennett, Partner, DWF Fishburns and Helen Otty, Associate of DWF LLP highlight: “Social media marketing is an essential way for businesses to increase brand awareness, initiate marketing campaigns and to monitor customer service. As such, social media outlets such as Twitter, Facebook, YouTube, LinkedIn and website blogs provide businesses with many opportunities; however, they can also present risks. Businesses are advised 10 THE BUSINESS EXCHANGE 2014 to be as careful of what is published in social media as they would with material that is published in a magazine or television broadcast. Defamation claims flowing from “Tweets” have recently received considerable media attention. For example, Lord McAlpine filed a High Court libel claim against Sally Bercow, the wife of the House of Commons speaker, to seek damages over an allegedly libellous “tweet” made by Ms Bercow on 4 November 2012 consisting of a comment followed by an “innocent face” image (the claim has now settled). Then on 31 October 2012, the Court of Appeal upheld a High Court decision awarding Chris Cairns, a well-known international cricketer, damages in respect of a message published on Twitter by Mr Lalit Modi, the former Chairman and Commissioner of the Indian Premier League. The Court of Appeal made the point that a message on Twitter can “go viral more widely and quickly than ever before”. A tweet on Twitter is capable of being libellous and, if proven to be so, can result in a Claimant being awarded damages. So to what extent can a statement made on Twitter, on any other social media outlet or otherwise be regarded as libellous? First, the statement has to be defamatory, i.e. a false statement which tends to lower a person in the estimation of right thinking members of society generally or to cause him to be shunned or avoided or to expose him to hatred, contempt or ridicule, or to disparage him in his office, profession, calling, trade or business. Secondly, the statement must be published to a third person other than the Claimant. Publication means the communication of defamatory material and in the context of social media, publication can be by electronic means through a posting on Twitter for example. A publication can also be the repetition or further publication of a defamatory statement, so a “re-tweet” can similarly fall into this category and in the Cairns case the Court of Appeal mentioned that numerous republications can be taken into account when assessing damages. Traditionally there have been three main defences to a claim in d

The Business Exchange Swindon & Wiltshire June 2014 Edition | Page 10