What follows is a guide designed to ensure that Twitter users avoid claims. The most likely complaint regarding a tweet will concern libel.
Libel is publishing - to a third party - something untrue about an individual or company. As a result of these words, their reputation is undermined and they are exposed to hatred, contempt or ridicule. A tweet can be libellous. However, in order to bring a claim the libelled would need to overcome the following hurdles:
The claimant would have to show the tweet in question amounted to a real and substantial wrong. In normal circumstances this means looking at the reach of the publication. On Twitter this may be established by the amount of followers, i.e. the more followers the person who published the Tweet has, the more likely this test is to be satisfied.
Even where there are few followers (65 has been found to be enough), the process of retweeting means the extent of publishing may be higher, especially if the tweet is particularly sensational. Each retweet of a libellous tweet will give rise to a separate claim; it is not a defence to say you were merely repeating what somebody else had already said.
The claimant must be identified in the tweet. This need not be by name but some form of identifying feature is necessary.
This has 2 parts: either the meaning of the words complained of must be their "natural and ordinary" meaning - you read and understand the tweet at face value. Or they could constitute an innuendo where they take on a different meaning, derived from additional facts known to the third party. For example, Sally Bercow's infamous Tweet concerning Lord McAlpine.
A claim must be brought within one year of publication. Continuing publication on the internet means this time limit does not apply.
If a tweet is published and then deleted, the time to bring a claim will start from when it was removed. This is where retweets will become important. If the original tweet is removed but your retweet remains you may remain liable when the original tweeter no longer is.
If the claim is successful they would be entitled to damages and an injunction. Damages can range from £1 to (conceivably) £275,000. The highest damages award for a libellous tweet to date is£90,000. If a claimant has instructed lawyers, he or she may require their legal costs to be paid. Most important is that the claimant gets a prompt apology and confirmation that the tweet was not true.
In libel, it falls upon the defendant to prove they are not liable for the publication in question. They can rely on the following defences:
- the ultimate and absolute defence; what is published is true.
- Likely to be the most common defence. Fair comment on a matter of public interest without malice - opinion, as distinguished from a statement of fact.
- Fair and accurate reporting of statements made in parliamentary, judicial and quasi-judicial proceedings published contemporaneously.
- cases where it was in the "public interest" for publication to take place. Need to show responsible steps were taken to verify story prior to publication. This defence can be defeated if the statement was motivated by malice
Other potential claims that could arise from Twitter use include:
- both civil and criminal sanctions are available. Unacceptable tweets could include those of a racist, homophobic, bullying or sexual nature. Two tweets could be enough to give rise to a civil claim. For a criminal prosecution, one tweet may suffice. The Malicious Communications Act 1988 makes it an offense to disseminate material which is "indecent or grossly offensive, or which conveys a threat … [where] there is an intent to cause distress or anxiety to the recipient".
- tweets have been known to give rise to contempt of court. For example, naming rape victims or revealing prejudicial material of an accused during a trial.
- revealing private information about someone's health, sex or private life or by tweeting private images of others without their consent - may all give rise to claims.
- many potential problems here. If clients follow you, be aware of what you tweet. And don't tweet about your big night out and then call in sick!
This guide is not intended to supress the enjoyment or usefulness of Twitter. Users can rely on their right to freedom of expression but with rights come responsibilities. Respect for others and basic common sense means you will avoid legal issues. Irresponsible use of Twitter, leading to false rumours and innuendo can cause harm. It would be better if the tweet was avoided in the first place.
In all instances: think before you tweet. If you're not happy standing up and shouting your tweet in a crowded bar, it's not acceptable to publish it on Twitter.