Social media perils: Prevention by care

By now, most of us will be familiar with the recent events involving human rights barrister Charlotte Proudman and law firm partner Alexander Carter-Silk, and will have our own views on their respective actions. 

Occurring as this did shortly after a recent Junior London Solicitors Litigation Association seminar on the potential benefits and risks associated with using social media in a professional context, these events are a timely reminder of the importance of operating with the utmost care. 

To recap, after accepting an invitation from Proudman to connect on LinkedIn, Carter-Silk sent her a private message, in which he made comments that she took to relate to her appearance in her profile photo. After responding to his message, Proudman published it on Twitter, labelling it ‘sexist’ and Carter-Silk’s behaviour ‘misogynistic’.

There will be differing views as to the veracity of Carter-Silk’s claim that his comments were misconstrued and pertained only to the quality of the photo itself (not to Proudman’s appearance). However, most will agree that being at the centre of a controversy because of a failure to choose words with sufficient care could cause irreparable damage to reputations and careers.

If a message (or even a social media post) is republished with an inaccurate and unfavourable comment or assertion, the author may have a case in defamation. To establish defamation the complainant must prove the words complained of:

• Are defamatory (i.e. that they would tend to lower the complainant in the estimation of right-thinking members of society generally);

• Identify or refer to the complainant; and

• Have been published by the defendant to a third party.?

Therefore, where a message or social media post from which the author can be identified is republished without redaction of their details, and with an untrue assertion that would likely have a negative impact on the reputation or public perception of the author, they would be entitled to bring a claim of defamation against the publisher. 

Any such claim could be hindered by the author’s failure to convey their message sufficiently, clearly giving the publisher the defence of having held the honest opinion that the damaging comment or assertion was true when made. 

The effectiveness of the defence essentially rests on the objective test of whether an honest person could have the held the opinion expressed in the assertion based on any fact that existed at the time of the statement. Clearly a carefully worded message or post with only one feasible interpretation would make it difficult for the publisher to use this defence, whereas a loosely worded message or post gives the publisher much more leeway. Even if the author was successful in a claim for defamation, it probably would not receive the same level of coverage as the initial post or entirely repair the damage to the author’s reputation.

The benefits of social media for young lawyers, including profile building and access to a greater target audience of potential clients, are well known. 

But recent events remind us that, when using social media in a professional context, prevention by care remains preferable to cure by the courts.

Nii Anteson is an associate at Simmons & Simmons and a committee member of the JLSLA www.lsla.co.uk/junior