Brand owners in the Food & Drink sector, building on a tradition of innovative marketing strategies, have been at the forefront in embracing social media. Despite its sporting context, the recent case of Cairns v Modi is a useful reminder for businesses seeking consumer engagement (and for those consumers and also employees personally) that those posting comments on Twitter and other social media sites are as culpable for their comments as in other forms of media and that publications to a small number of people for a short period can still attract liability.
Lalit Modi, while Chairman and Commissioner of the Indian Premier League, Tweeted comments alleging that Chris Cairns, a former New Zealand cricket captain, had taken part in match fixing. The Tweet was removed within 16 hours of it being posted. The words were also repeated in a publication by Cricinfo UK, a cricket magazine. It was estimated that approximately 65 people saw the Tweet and around 1,000 people read the publication. Cairns sued Modi for defamation and Modi relied on the defence of justification; i.e. that his comments were true. However, Mr Justice Bean found Modi liable for defamation and awarded £90,000 in damages to Cairns.
Perhaps surprisingly, the Cairns case is one of very few defamation claims involving social media that has come to court so far. The statements made by Modi were clearly extremely serious and highly defamatory but care needs to be taken before posting all but the most straightforward of comments. Liability can arise for both the author of the material and, usually only once on notice, the organisation hosting the content (including, for example, brand owners who operate blogging sites as part of marketing campaigns).
The number of people who read comments will have an impact on damages but not generally on the issue of liability. In the Cairns case it was agreed (for the purpose of the trial) that around 65 people in England and Wales had probably read the tweet alleging match-fixing. The tweet itself was removed within 16 hours but even such limited circulation was sufficient to establish a claim in defamation.
There may be a number of defences available to a person tweeting defamatory comments about someone else. In the Cairns case, Modi claimed that the comments could be “justified”. Bean J explained this by saying “my task is therefore to decide whether or not Mr Cairns was a match fixer”. An examination of a justification defence, when a court is poring over evidence relating to the allegations in question, can often be where a hasty decision to bring a claim backfires. However, Bean J’s answer to his question was emphatic when he stated that the Modi “has singularly failed to provide any reliable evidence to support such a claim”.
The other most common defence in this situation – i.e. a Twitter or social media comment that would otherwise be found to be defamatory - is the defence of “fair comment”. This applies when a comment (rather than a statement of fact) is published on a matter of public interest. The key here is that the statements must be comment (rather than as in the Cairns case, where the Tweet was a statement of fact) and must be honestly held – this defence will not help someone circulating malicious comment for their own ends.
The Cairns case also shows how conduct in pursuing a claim can have an impact on damages. Bean J said that the “sustained and aggressive assertion of the plea of justification at the trial” should increase the damages recoverable. He found that the way in which the defence ran the trial was typified by their closing speech, which used the words “liar”, “lie” and “liars” 24 times. Cairns was awarded a 20% uplift on compensatory damages of £75,000 and Modi was also ordered to pay legal costs.