PLANS by a tennis fan to take legal action against Wimbledon finalist Nick Kyrgios after he accused her of being “drunk out of her mind”, have once against thrust defamation law into the public spotlight.
So too, the so-called ‘Wagatha Christie’ saga that saw the case between Colleen Rooney and Rebekah Vardy go all the way to the High Court. There was also intense public interest in the legal proceedings in the US between Johnny Depp and Amber Heard (Mr Depp’s earlier defamation case in the UK having been dismissed).
Due to the personalities involved, it is no surprise that these matters have made the headlines. They also serve to illustrate that comments which constitute libel stretch far beyond those made in a newspaper article.
And in a world where social media is virtually omnipresent, placing a public commentary platform in the palm of our hands, it is not just the rich and famous that should be on their guard.
In Northern Ireland, which has no minimum bar for what constitutes serious harm in terms of the damage caused by a defamatory statement, we must be particularly mindful when making any public remarks.
Two high profile cases involving local personalities show the ease with which a social post can land users in hot water.
Most notably, celebrity doctor Christian Jessen was ordered to pay £125,000 to former First Minister Arlene Foster following a Twitter posting that made false allegations about her marriage.
Staying in politics, Phil Flanagan, then a Sinn Fein MLA, was told by the High Court in Belfast that he must pay almost £50,000 in damages to former Ulster Unionist leader Tom Elliott.
This related to a defamatory comment made by Mr Flanagan on Twitter that falsely suggested Mr Elliott had shot people when a member of the UDR.
In a subsequent and unsuccessful attempt to claim upon a policy procured on behalf of the Northern Ireland Assembly, Mr Flanagan maintained that he did not realise that his tweet was defamatory as he had framed it in the form of a question. However, the court found that that the defamatory nature of the tweet was so obvious that Flanagan must have realised this when he sent it.
The common theme in both cases is that they began with a post made in haste, a spur of the moment comment.
In the case of Mr Flanagan’s tweet, it was made as a direct response to a live debate on the Stephen Nolan Show on BBC Radio Ulster.
The context of his response, issued before he left his car having listened to the programme en route to Stormont, has been likened to the to-ing and fro-ing of a conversation (albeit with the radio) as opposed to the calm and considered composition of a newspaper article. Regardless, the law treats both as libel.
Dr Jessen meanwhile made his post on the evening of December 23 2019, at the height of the Christmas break. He had around 311,000 followers on Twitter at the time, with the post being retweeted more than 500 times in the fortnight that followed.
Regardless of standing or notoriety however, posts can go viral.
It is therefore imperative that users take time out before tweeting or posting to their social media account.
The aim is not to stifle free speech but to recognise that the contribution should be as considered and thoughtful as possible in order to contribute to the debate and to avoid unlawful, potentially defamatory content.
Should you become subject to legal proceedings, seeking expert legal advice as soon as possible is vital. Doing so will allow potentially costly pitfalls to be identified and planned for at an early stage.
Alternative pathways that could avoid lengthy legal proceedings may also exist. It has been argued, for example, that the Wagatha Christie case should simply never have reached trial, given that there had been three attempts to settle throughout its course.
We cannot be sure why a settlement was never agreed but can be certain that the case became more complex and expensive as a result, a luxury not always afforded to defendants or claimants depending on their resources.
As cases take on their own momentum in this way, results can be unpredictable, particularly where a jury is involved (which can still be the case in Northern Ireland).
In the United States, Elon Musk won a defamation after he described a caver as a “pedo guy” on Twitter. He was unanimously cleared by a jury after his legal team argued that the tweet was a joke made in haste but quickly removed.
The concept is known as ‘JDart’, a ‘joke’ that was badly received, ‘deleted’ as a result, along with an ‘apology’ and then ‘responsive tweets’.
While Mr Musk was eventually victorious, that came at the end of a protracted legal affair.
It goes to show, a swiftly made comment can have long lasting and expensive consequences. It pays to take time, and due consideration, before making public remarks.
:: Chris Ritchie is litigation and dispute resolution partner at Arthur Cox
