Although social media is old hat these days, there is still a tendency to forget that statements made in social media are subject to the same laws and consequences as statements in traditional media. Where an employee would not consider commenting on confidential business to a reporter and having their name published, they often do not hesitate to do just that on their Facebook page or Twitter account.

As the first case of Twitter libel was recently decided, we look at this and some other developments in “tweet-law” to see how the law is responding to social networking.

Damages for Twitter Libel

In the first case of Twitter Libel, the High Court in Cardiff awarded damages to a councillor, Mr Talbot, after a tweet about him posted by a political rival, Mr Elsbury.

The councillors were both standing for election to Caerphilly County Council in a by-election in 2009. On the day of the poll Mr Elsbury wrote on his twitter page “It’s not in our nature to deride our opponents however Eddie Talbot had to be removed by the Police from a polling station.”
Mr Talbot argued that the statement was untrue and defamatory and left him open to ridicule.

Mr Elsbury reportedly agreed to pay Mr Talbot £3,000 in compensation, publish an apology on his Twitter site and to pay Mr Talbot’s legal costs.

This case demonstrates the need to be very careful when writing about other people on Twitter and other social networking forums.

Court Order Served on Twitter

Donald Blaney, a right-wing blogger, took action against an unknown individual who had been posting on Twitter using his blog name.

Mr Blaney runs a blog called Blaney’s Blarney and posts updates on Twitter under the name Donal_Blaney. An unknown individual set up a Twitter account under the name blaneysblarney and tweeted ten times, which Mr Blaney considered was breaching his copyright and intellectual property in his blog.

Mr Blaney sought an injunction from the High Court to stop the person from posting and to identify themselves. The High Court made the order, and because the identity of the individual upon which the order was to be served was unknown, allowed it to be served on Twitter.

Although orders are normally served through the post, they can also be served by fax and email. This seems to be a further step in courts being flexible with the method of service used. A potential problem with using alternative methods of service is that the other party could argue that they were not aware of the order.

Watchdog Rules that Newspaper’s Use of Twitter Posts was Legitimate

The Press Complaints Commission (“PCC”) has ruled that the Daily Mail was within its rights to republish a civil servant’s Twitter messages.

The Daily Mail ran a story commenting on the wisdom of civil servants using social media platforms. As part of the story it republished tweets from a civil servant at the Department of Transport, Sarah Baskerville.

Ms Baskerville’s tweets, which could be seen by anybody, included messages describing herself as suffering a “wine-induced hangover” and referring to a Conservative MP who, in opposition, had been a critic of Government waste.

Ms Baskerville argued that her tweets were private and that she has reasonable expectation that her messages would only be published to her 700 followers.

The Daily Mail argued that it had not invaded Ms Baskerville’s privacy as the material posted was open to public view and could be accessed by anyone.

The PCC held that the material was open to public view, although there were 700 actual subscribers to Ms Baskerville’s account the potential audience was much greater, due to the availability of the “re-tweet” mechanism, through which a message can be re-posted without the original author’s consent or control. This publicly accessible nature of the information was a key consideration of the PCC’s assessment as to whether it was private.

The PCC noted that the published material related directly to Ms Baskerville’s professional life as a public servant and was relevant to the Daily Mail’s comments on the use of social media and civil service rules on impartiality.

Lessons to be Learnt

As the use of social media continues to expand, businesses’ need to ensure that they are aware of and are managing this usage.

Individuals seem to use social media with a false sense of security, considering it “private”, despite wide-spread public access. Businesses must be alert to this danger and ensure that they are managing it by training employees and making them aware of their obligations. These should be set out clearly in the communications policy which should explicitly cover social media.

As well as the negative publicity that can accompany employee’s Tweets, there are also other potentially serious repercussions, if confidential information is leaked or employees bully or harass other members of staff a business can be potentially liable.

From 1 March 2011 the remit of the Advertising Standards Agency (“ASA”), which is responsible for regulating advertising in the UK, will extend to online advertising. Whilst most forms of advertising already fall within the ASA’s governance, including advertisements placed on the internet in paid-for advertising space on third party websites, there are a number of exceptions, most notable of which is online advertising placed by a business on its own website, including social networking sites or pages, under its control.

From 1 March 2011 the UK Code of Non-broadcast Advertising, Sales Promotion and Direct Marketing (the CAP Code) will apply in full to online advertising messages. This will include the rules relating to misleading advertising, social responsibility and the protection of children.

For businesses, this will mean any advertising on its Twitter feed which fails to meet the requirements of the CAP Code will leave it open to ASA sanctions, which include restriction of access to media space for future advertisements and, ultimately, referrals to the Office of Fair Trading.

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