You’ re entitled to your opinion ... but posting it on the internet could prove to be a very costly business
As the fallout from the Ulster rugby rape trial continues, Laurence White reports on how posting your opinion on the internet can prove to be a very expensive business
THE trial of two rugby internationals, Paddy Jackson and Stuart Olding, on rape charges — and of two of their friends on charges arising out of events on the same night — may be over, with all four men being unanimously acquitted on all charges, but there may be other legal actions taken as a result of commentaries made on social media before and after the verdicts were delivered.
Two people have been interviewed by police investigating the use of social media to name the woman at the centre of the trial. Complainants in rape cases are given a lifelong right to anonymity and naming them — unless they waive their right — would be an offence under a section of the Sexual Offences Amendment Act 1992.
Files on this investigation have been forwarded to the Public Prosecution Service.
Simultaneously, Mr Jackson’s lawyers launched legal action against an Irish Senator, Aodhan O’Riordan, over a tweet he sent to a number of people after the acquittals. It was later taken down.
Lawyers for both Mr Jackson and Mr Olding went public to warn that they were monitoring social media commentary and would take action if they thought their clients were being defamed.
Social media, as we know, can be a forum for harmless chitchat between friends, a place to post messages or photographs, keep in contact with family and friends from all over the world and, occasionally, to rally help for people in distress.
But it can have a more sinister side, with cyber-bullying or vicious trolling of individuals, where outrageous claims or even threats are delivered, far from uncommon.
There is a rule of thumb that should be remembered every time you think of posting something on Twitter, Facebook, WhatsApp, or any of the other online platforms: do not say anything about anyone that you would not feel comfortable saying to their face.
Otherwise, you could find yourself in deep trouble, because the laws on defamation, for example, are wide-ranging and easy to fall foul of.
Take the example of Sally Bercow, wife of the Speaker of the House of Commons, John, who ended up with a total bill reportedly in excess of £100,000 for a tweet with an “innocent face” emoticon appended to it.
The tweet named a prominent politician and the emoticon was held to suggest that he was not an innocent party — even though he had been wrongly accused of child abuse.
There were just seven words in the tweet, meaning that each character used cost Mrs Bercow more than £3,000.
But this judgment, from May 2013, obviously has not persuaded the online keyboard warriors that they are bound by the same laws as the mainstream media, which they are keen to denigrate at every opportunity.
But it is not just defamation laws that online posts can run foul of.
Also in 2013, two men, Neal Harkins and Dean Liddle, were prosecuted for contempt of court. Both had attempted to identify Jon Venables and Rob- ert Thompson, the killers of Merseyside toddler Jamie Bulger, by posting on separate online platforms.
That was in breach of a worldwide injunction, banning the publication of any information relating to the new identities given to Venables and Thompson.
The two men each received suspended sentences of nine months.
But online posts can also get someone in trouble even if what they did was not against any law.
Sinn Fein MP Barry McElduff was forced to resign from his West Tyrone seat in January this year, not through any legal process, but due to the verdict from the court of public opinion, which was outraged when he posted a video of himself with a loaf of Kingsmill bread on his head.
The video coincided with the 42nd anniversary of the Kingsmill massacre, in which republican terrorists murdered 10 Protestants as they were returning home from work in a van. Unionists accused Mr McElduff of
The only saving grace is, the damages may be cut if the post is removed quickly
mocking the massacre, an allegation that he strongly denied, but which ultimately led to his downfall.
While platforms like Twitter or Facebook may be as easy to navigate as emails to the vast majority of people today, to those of a certain age they are something of a mystery.
It was that which led to Britain’s High Court publishing a Twitter ‘how to’ guide just last year.
In delivering judgment on a defamation case, Mr Justice Warby said that while Twitter was widely used and very wellknown, it was nevertheless a relatively new medium and not everyone knew all the details of how it works.
The judgment included an appendix giving a 26-point guide to how Twitter works, explaining its history and how users interact with each other.
The case involved tweets sent by Mail Online columnist Katie Hopkins to food blogger Jack Monroe, implying that the prominent property campaigner had defaced a war memorial.
Hopkins had intended to send it to someone else and ended up having to pay Monroe £24,000. A lawyer for Monroe said Hopkins should have deleted a tweet within minutes of being told it was wrong, but Hopkins said that Twitter was “just the Wild West where anything goes”.
The lawyer added: “The judge has shown there is no such thing as a Twitter outlaw.”
That is the attitude being taken by the legal teams for both Mr Jackson and Mr Olding.
Mr Jackson’s legal team said they had no alternative but to resort to the civil courts to “seek protective action” following his acquittal.
A lawyer for KRW Law added: “I can confirm we have issued pre-action libel correspondence against a named Senator in the Republic of Ireland.”
And she warned: “We are examining carefully every item of social media commentary which seeks to challenge the integrity of the jury’s full endorsement of our client’s innocence.”
Mr Olding’s solicitor, Paul Dougan, was even more explicit. He said he could not criticise people wanting to assemble and make themselves heard — a reference to the number of rallies held on Thursday in support of the complainant in the case.
But he also issued a warning: “They have to stay within the law, including the law around defamation, and they must respect the jury’s verdict in the same way we would have been required had it gone the other way. The four men in this case were all found not guilty of the charges against them.”
And he added: “We would not rule out taking action if defamation laws were breached.”
So, what are these defamation laws that it is so easy to run foul of if posting either in haste or in anger?
In broad terms — but specialist libel lawyers know there are many nooks and crannies in the legislation — defamation is damaging the reputation of someone in the estimation of right-thinking members of society.
These rules also apply to retweets — where someone else’s message is shared or forwarded. You could be seen to be endorsing the original message and could be sued.
You also don’t need to name the person to be sued. If it is possible for the person to be identified from what you say, then legal action could follow.
This can easily happen when a person has been identified by others for some particular reason and you weigh in with comments which are seen as been directed towards that person, even though you did not name them.
So, what defence have you got? If you can prove that what you said was true, then you are off the hook.
Honest opinion is another defence, but, be warned, opinion can stray into dangerous territory (that is, it may be deemed a statement of fact and then you would have to prove it to be true).
Having second thoughts and taking down a post on social media may not save you from legal action.
You may delete it, but others could have forwarded it in the time it was online. Once it is in the Twittersphere, or any other platform, it cannot always be retrieved.
The only saving grace is that the amount of damages payable may be lessened if the post is removed swiftly.
But it is not just defamation which can land you in court. Beware of privacy and contempt legislation and you could even run foul of racism, or terrorism, laws.
Rushing to post your opinion on social media could be a costly venture.