Kyle Masters On Social Media/Defamation Laws

December 21, 2012

[Written by attorney Kyle Masters, an associate at Trott & Duncan]

It’s no secret, gossip in Bermuda spreads further than the sound of gombeys on Boxing Day. Most people know that their words, if found to be defamatory, can be used to bring an action in defamation, the result of which could be an order for damages made against them.

What you may not know is that even if you are not the original author of the words published under Bermuda Law, you can be just as liable for the damage caused by a defamatory statement as the original perpetrator. Let me explain.

The law says everyone’s reputation is valuable. That is the starting point. The way reputation is measured in Bermuda’s society, according to our common law, is by the way other reasonable members of society view you. Your reputation can become damaged if someone publishes something about you that would cause your standing in the eyes of reasonable people to be lowered.

Here is the important part; the statement that is published must be published to a person other than you and it must be untrue. Once those elements are proven, you have a case for libel on your hands. There are several defences to libel, but this article would be far too long if I tried to explain them all in one go (plus you have to get back to work soon).

Defamation is largely lumped into two categories; slander, which is spoken or transient form defamation, and libel which is defamation that is in a written or non-transient form. Let us focus on libel shall we?

Facebook – a great way to waste a couple of hours. You can catch up with old friends, play animal farm, share pictures of your latest meal and publish a defamatory statement about someone to 973 of your closest friends all in a matter of seconds. Only one of these things has serious legal consequences.

The law says that every republication of a statement is a fresh publication and carries with it the same liabilities as the original. This means that even if you were not the person who wrote the statement, the person whose reputation you damaged is entitled to make a claim against you as if you did.

Not only that, if your intention was to publish the statement to others or it is a natural or probable consequence of your publication that it would be republished to more people than just the original recipients you can be on the hook for all the republications too.

An example: You see a Facebook post on your wall about a popular Hamilton restaurant passing rats off as chicken meat, complete with pictures and a seemingly plausible explanation. ‘My goodness’, you exclaim. ‘I must warn my friends and family members that their delicious chicken dinner may be nothing more than rodent cleverly disguised’.

With that in mind you forward the post off to 100 of your Facebook ‘friends’ in hopes that it reaches them before lunchtime. If the statement you just reposted is proven not to be true and the chicken in the restaurant is the real deal, the restaurant whose reputation you just damaged likely has a case against you for libel.

But, it goes one step further; let us suppose those 100 contacts you sent it to each send it to 100 more contacts and so on until, in a matter of moments the once spotless reputation of the Hamilton restaurant has been dragged through sewers of cyberspace all thanks to your quick action at the keyboard.

No one will eat there; at least they won’t eat the chicken. The owner of the restaurant has a good case against you for the thousands of republications stemming from your forward and is entitled to ask for the damages to be assessed accordingly.

Here is my top tip for posting forwards on Facebook, email, Twitter, Instagram or whatever other form of social media you use: DON’T. If you are not prepared to swear to the truth of the statement in Court, why attach your name to it in cyber space. Here is one case where what you don’t know could hurt you.

-  Kyle Masters

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  1. my life is not my own says:

    good article. people definitely need to be well aware of the law and its application. very important question kyle…..what about when an employer posts untrue remarks about you in an employee file that is accessible to many within management and many that would come through the organization even when the current management has moved on? this file serves to speak of your character and your “employable” status and if untrue information is maintained, this could have obvious damaging effects on future employment ability within the same organization or otherwise. also, if this fabricated information is shared with others outside of the organization, for whatever reason (ie Labour Dept or Union in dispute resolution), it is now on record with another facility all together inviting further “discrimination”….is all of this considered libel and if so, what can an employee do about it? btw, what is the name of the bermuda law that addresses defamation?

    • .am says:

      Looking for free advice?

      • my life is not my own says:

        nay sayers. if you can intellectually provide it, in 15 minutes or less if you so desire, we’re listening. valid inquiry to an important topic that affects many. greater good grasshopper, greater good.

  2. Errin Butterfield says:

    Very interesting.My little bit of advice to people that I know is, if people gossip about you and ignorant,stupid people take it on, laugh it off and feel good that you gave some fools something to talk about, you must really be important to them.Do not lower your standards to theirs and always remember to love your haters after all you created them.

  3. fair comment says:

    One of the defences to defamation is the “Fair Comment defence,” which Wikipedia defines as follows:

    “This defence arises if the defendant shows that the statement was a view that a reasonable person could have held, even if they were motivated by dislike or hatred of the plaintiff. The fair comment defence is sometimes known as “the critic’s defence” as it is designed to protect the right of the press to state valid opinions on matters of public interest such as governmental activity, political debate, public figures and general affairs.”

    I would be interested in Mr. Master’s opinion of whether that defence would be possible where the on-line comment was about a politician who was involved in the granting of a number of suspicious Government contracts that were granted in breach of the Government’s own Financial Instructions laws and had massive cost overruns. For instance, would it be defamatory to ask, “Who was profiting from all these non-tendered contracts?”

  4. Free says:

    Good piece of information. Maybe all the big mouth gossiping Bermudians will think twice before opening their mouths or typing something they heard from someone, who heard from someone else.

  5. Unjust Realities!!!! says:

    I wonder where this information was leading up to the election and before when people were calling MPs thieves and accusing them of stealing government money in all other social media. Ironic this comes out when a white man is accused of making racial remarks!!!!

    Please stop with the scare tactics!!!!

    • DarkSideofTheMoon says:

      Just in case you didn’t realize….the election is over.

    • Judge Dredd says:

      They are not motivated by justice, they are only motivated by the ways they can manipulate a justice system. All the defamatory libel during the election was fair game to regain power by any means necessary. The image of white purity and black guilt must be maintained by the same principle. Look at how no one knows what actually happened but the experience is completely denied by numerous posters. I’m not at all saying it’s definitely true but saying it’s definitely not true is a travesty. I must state the obvious that whites do subconsciously know that they are afforded a mantle of blamelessness and moral superiority due to the deification of the white race in religious symbolism. This makes them as much victims of such symbols as blacks are degraded by such. No one wants to address this but I assure you it is the most pivotal issue when dealing with racism. What happens when you depict the divine as white or black? This is the advantage they have in elections etc. and they used it well. Congratulations.

  6. Thank you Mr. Masters. As always, the utmost respect!

  7. Withheld says:

    Trouble is with the BBs, the police said that they couldn’t trace the origins of them. A messed up little Bermudian female sent around a list of “child molesters” that consisted of criminals who were actually prosecuted for the crime and two innocent men who she was trying to seek revenge on. Luckily for her, the police said they couldn’t trace it to her phone. She won’t be when karma gets to her but the law couldn’t! So what can these two innocent men do to clear their names now? Apparently they contacted the media but no one was interested in the story.

  8. Just Us says:

    Be prepared for long court delays as the entire country guilty…

  9. Oh Please says:

    So what do you get if you publish a statement that helps some ones reputation? A pat on the back or a free trip to Las Vegas? Just wondering.

  10. Chase says:

    Well said Kyle!!
    Personally I feel that legislation has to be passed to stop the blatant abuse that currently takes place