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Publishing Online

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Publishing online and on social media

When you post material online, as far as the law is concerned, you act as a publisher and the publication will be subject to the same laws as those governing professional publishers, such as newspapers.

The legal position of an individual who posts content online, be it on Twitter, Instagram or even on Apps such as SnapChat and What’sApp, is clear: he or she is responsible for that content. Even ReTweets.  Individuals are responsible for the republication of tweets by ReTweet even though they did not write the original message. Ignorance of the law is not a defence.

Here are three laws to be aware of when you post online:

1. Libel

Your post will be libellous where it “substantially affects in an adverse manner the attitude of other people” towards the person or entity that you are writing about.

Of course, if you are sued, you will have the opportunity to defend what you have written. In order to do so, you would generally need to demonstrate one of three things: (i) you can prove the truth of what you have written; (ii) the post was an opinion based on facts that you have referenced in the post; or (iii) you have fairly and responsibly investigated the truth of your statement beforehand, including taking comment from the subject. The second and third defences are very unlikely to in a 140 character Tweet!

Where a claimant succeeds in a libel claim, he or she will normally be entitled to damages. In assessing damages, the court will take into consideration the level of publication. Therefore, the size of your audience (how many friends, or followers you have the amount of Retweets) will all be relevant to calculating damages.

Damages can approach six figures depending on the extent of publication, the seriousness of the claims and whether or not you apologised. In the UK's first libel case involving Twitter Chris Cairns was awarded £90,000 in damages after he was accused of match-fixing by Lalit Modi in a tweet (though Modi is seeking to reclaim these damages and challenge the award).

2. Contempt of Court

Publishers must not publish material which risks damaging a criminal trial. Traditionally, this has been the concern of news entities. These days, it is everyone’s concern, with social media also being caught by the Contempt of Court Act.

Once somebody has been arrested or proceedings have started, the Act provides them with protection from publications which may prejudice or impede the course of justice. This means that speculating on the guilt of accused parties, or commenting on the identity of anonymous victims, can have serious legal implications and can resulted (and has resulted) in prosecution of Twitter users by the Attorney General. 

In 2013, the Attorney General successfully brought contempt proceedings against individuals who tweeted an image purporting to be James Bulger’s killer, Jon Venables, as an adult and in more recent time action has been taken against individuals naming the victim of footballer Ched Evans.

Privacy

Many team-mates, in cricket, rugby and football use social media to embarrass their colleagues. This is often harmless. However, if it spirals out of control, the consequences can be disastrous.

Putting on your Twitter or Instagram account screenshots of private text conversations, photos of players in compromising positions and even a team mate's SnapChat message, can lead to legal complications given that all those categories are private information.

The chances of a team mate suing you for invasion of privacy are slim but if a prank gets massively out of hand - that could be the result.

The message that we are hearing loud and clear from the courts is that the public cannot treat communication on Twitter and Facebook as they would a chat among friends. Judges have recognised that, as a consequence of social media platforms, stories have the capacity to “go viral” more widely and more quickly than ever before.”  Individuals are increasingly being held responsible for what they publish on these platforms.

Think twice before making an allegation, speculating on a trial or sharing someone else’s dirty laundry in public.