A costly diagnosis through social media

Category: Dispute Resolution

As social media becomes ever more prevalent in our lives, so do does its ability to influence the way we think and behave. Be it through Facebook, Instagram, Twitter or Linkedin, never before has it been so easy for people to communicate with so many other people, at the touch of a button.

However, how often do you really take a step back and consider the impact of the content posted? Posting a message or sending a tweet has become so convenient, so interwoven into our everyday lives, that it can easily be forgotten that the same rules, which apply to other more traditional forms of print and broadcast media, apply in the same way.

The recent case of Arlene Fioster v Dr Christian Jessen is a prime example. The TV personality, Dr Christian Jessen, who you may know best from Channel 4’s programme Embarrassing Bodies, has been ordered to pay £125,000.00 in damages for posting a tweet on social media that the High Court in Belfast deemed to be defamatory.

What did the tweet say?

According to the news report, Dr Jessen tweeted that Arlene Foster, who was, at the time of the tweet, the leader of the Democratic Unionist Party and a committed Christian, was having an extra-martial affair.

Interestingly, Arelen Foster’s lawyer tweeted Dr Christian Jessen, in response to the tweet, requesting that it be removed or that he would otherwise face court action. This was a warning that Dr Christian Jessen did not take seriously as he reportedly responded by simply stating: “LOL”.

The Tweet remained on Dr Christian Jessen’s Twitter for a period of two weeks and was liked around 3,500 times and retweet 517 times. Each time the tweet was liked or shared, it undoubtedly would have reached a wider audience on social media.

What did the Court say?

The Court found in favour of Arlene Foster. In doing so, the court judged that the tweet was defamatory and had attacked her integrity.

The court ordered Dr Christian Jessen to pay £125,000.00 to Arelen Foster in damages as well as a contribution towards her legal costs.

The amount Dr Christian Jessen has been ordered to pay towards Arlene Foster’s legal costs is not clear at this stage. However, an interesting feature of proceedings was the fact that Dr Jessen failed to engage with the legal process for at least 12 months. In the UK, a failure to comply with the court’s pre action protocols typically attracts significant costs sanctions, unless there is a compelling reason for the non-compliance.

What is Defamation?

In England, Defamation is governed by the Defamation Act 2013. A statement is deemed to be defamatory where it causes serious harm to the Claimant’s reputation. The assessment of this is often whether the statement lowers the reputation of the Claimant in the right-minded person. In this case, the court found that the statement attacked Arlene Foster’s integrity and was false.

The onus will be on the Claimant to prove that the statement has been published to a third party. In cases of written statements being made on social media, this should not be too hard to prove given that the post can be screenshotted and retained within a matter of seconds. Each time the post is read by someone, it is deemed to be published and gives rise to a separate and distinct claim. A hurriedly sent tweet or post can, as Dr Christian Jessen discovered, prove expensive.

The author of a post can also be found liable for the republication of a post. This would mean that Dr Christian Jessen could have been found liable for a claim on each occasion the post was shared. Whilst the court’s position on this is not clear from the reports, it seems likely that the substantial size of the award was influenced by the fact the tweet was so widely retweeted and Dr Christian Jessen’s following.

What does this mean?

The case is a stark reminder that there is a need to be mindful of the content that you are posting on social media or indeed sharing. It demonstrates the court’s willingness to find for Claimants for defaming social media posts, a clear reminder, if one were ever needed, that the law of defamation applies equally to personal social media as it does to print and broadcast journalism.

There are questions over whether a court in England would impose the same level of damages and if Dr Christian Jessen’s presence in the public eye had an influence on it. However, this is not something most people will want to find out.