Tom Maple, defamation lawyer at Oxford law firm Henmans, reflects on the dangers of using social networking sites — mistakes could cost your business dearly

Three recent cases involving Premiership footballer Ryan Giggs, singer Courtney Love and Caerphilly councillor Colin Elsbury have highlighted the need for extreme care by users before posting on the social network site,Twitter.

Mr Elsbury had claimed town councillor Eddie Talbot had been removed from a polling station by police during a by election in 2009.

Mr Talbot said the untrue claim left him open to ridicule and a court told Mr Elsbury to pay damages of £3,000 as well as legal costs of approximately £50,000.

Courtney Love paid out £264,000 to fashion designer Dawn Simorangkir after making a false statement and Ryan Giggs was named on Twitter by a number of Twitter users over an alleged affair with a reality TV star despite having taken out a court injunction.

Whilst the issues surrounding Giggs and users of Twitter did not relate to the publication of a libel (or “twibel” as it is now known in the States), all three cases highlight the user’s responsibility for the words posted on all forms of social media. Make a mistake and users can end up paying significant damages and costs.

Before the explosion of social media such as Twitter, Facebook, Bebo and LinkedIn, libel cases against third parties were limited, in the main, to cases against journalists, television companies and other social or scientific commentators.

But a quick review of recent case reports shows that the modern defendant is anybody from A List celebrities to you or I.

It is highly unlikely, in the vast majority of cases, that a post on Twitter will end up at trial.

But the Elsbury case made it clear that even if you settle before trial, a defamatory remark on Twitter could cost significant sums of money.

The test of what is defamatory is not a high hurdle to overcome. A claimant (who can be a person or a business) must merely show that the imputation of the words used must tend to lower them in the estimation of right thinking members of society generally.

The words used must be published to a third party, a hurdle which is easy to overcome if the comment has been openly posted on social media.

Unfortunately, the majority of people appear unaware of how potentially easy it is to fall foul of the law.

One recent example related to a company in the leisure industry. A group of dissatisfied clients turned to Facebook and created a page which aired concerns.

While the existence of the page itself was unlikely to be defamatory, a number of the comments were, in particular those raising unsupported allegations of illegal activity against office holders in the company.

What was particularly stark was that some of the posts were not from clients but friends of the clients wanting to show support. Given the potential risks against the negligible gains their actions are remarkable.

Typical responses from those who had posted on the site and asked to remove their comments highlight the misunderstanding in this area.

They ranged from “the comments are true”, “I am only repeating what someone else told me,” to “you cannot sue me for posting something on Facebook.”

But the fact that something is true does not mean it is not defamatory. Calling somebody a thief is almost certainly going to be defamatory.

However, you will only succeed in your defence if you can show it is true and this is not always easy. And the fact that you have made a defamatory remark exposes you to the risk of receiving an expensive claim and costs.

Repetition is no defence. It doesn’t matter if the person told you swore it was true. Repeating a defamatory statement makes you guilty of defamation. If in doubt, don’t repeat it.

The fact that you posted on Facebook or Twitter makes no difference. Your post is a publication in the same way that a newspaper publishes an editorial. If you publish defamatory remarks which are open for review by third parties, those comments may lead to a letter of claim and high court proceedings.

Businesses in the 21st century are increasingly conscious of their own press. Where previously this meant a local or regional company need only monitor its press in local newspapers, cautious businesses today keep regular tabs on blogsites, Facebook, Twitter, LinkedIn and other social media.

The issue of publicity is of such importance that some businesses employ individuals to specifically monitor their press and, if required, take legal proceedings.

So it is vital to be aware of the the law of defamation in this day and age.

Bear in mind that of the 154 libel proceedings in 2008 identified in a recent Government Review, none were won by defendants.

The most expensive libel action in 2008 cost £3,243,980 and the average cost for the 20 most expensive trials was £753,676.95.

So it makes sense to think carefully before you Tweet.