Risks of unlawful social media content
Changes in UK defamation landscape and what you need to know
By Joanna Conway (UK)
Norton Rose Fulbright LLP
A carefully curated social media presence is a critical business requirement, but there are risks. One of these risks is unlawful content – be that unlawful content posted to your businesses’ own social media account (exposing the company to potential liability) or harmful content about your business (or its C-Suite or key personnel) posted on independent sites.
So how do you tackle unlawful content? Often the first point of call is the law of defamation. The UK is renowned as a claimant friendly jurisdiction for defamation litigation. With its widely respected court system and judiciary, the UK has been the forum of choice for international defamation disputes. Note that the rules have recently been tightened up with stricter thresholds brought in for defamation actions and a requirement, aimed at stopping “libel tourism,” that for claims against non-EU defendants the UK must be the “most appropriate place” in which to litigate (the Defamation Act 2013).
This tightening up of UK defamation law has driven creative litigation, with the developing areas of privacy and data protection law, as well as the sometimes overlooked claim of malicious falsehood, providing fertile ground.
In the wake of the UK press phone-hacking scandal, victims of hacking brought a civil case for invasion of privacy. This case, Gulati & Ors v MGN Limited  EWHC 1482 (Ch) (21 May 2015), confirmed that damages are available for the invasion of privacy per se and for distress (without the need for consequential use of the information). The total measure of damages was substantial and this result, together with the tightening up on the rules of defamation, has driven claimants to frame unlawful content claims as privacy claims.
Similarly, in the case of Vidal-Hall v Google,  EWCA Civ 311 (27 March 2015), the UK courts held that damages for breach of data protection laws were available to compensate for distress, even if there was no financial loss caused. This holding opens up the possibility of data protection claims being run instead of, or alongside, a defamation action.
As a company, if it is your business rather than your personnel that is the subject of the unlawful content then the corporate entity may be able to bring a defamation action in the UK if it meets all the necessary requirements. The new threshold test requires the company to show that the content caused or is likely to cause “serious financial harm.” This requirement has led to a renewed focus on the action of malicious falsehood, which applies where a publication is untrue and made with “malice” (which includes recklessly), but avoids the “serious financial harm” test and some of the new stricter rules now applicable to defamation actions.
Taking a step back, what all of this means is that where unlawful content about an individual is posted (whether on your business’ own social media accounts or about your personnel on an independent platform), you need to be aware that there are enhanced and developing means for the individual to seek redress. The boundaries of these claims are not yet clear and so it is advisable to have measures in place to ensure that these issues are appropriately handled. We expect to see further developments in this area. Indeed, the possibility of running a data protection claim in tandem with a defamation claim has very recently been approved by the UK Court of Appeal. (HH Prince Moulay Hicham Ben Abdallah Al Alaoui of Morocco v Elaph Publishing Ltd  EWCA Civ 29 (27 January 2017).)
Similarly, where the unlawful content relates to the company, you should consider that even if a defamation action may not be viable, the claim for malicious falsehood could be. As stated above, these areas are developing and it remains to be seen where the boundaries ultimately will fall. As a result, the UK courts currently remain an attractive venue for claims concerning harm to reputation.
Norton Rose Fulbright LLP
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