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18 June 2021

TV Doctor from Embarrassing Bodies in trouble:: Social media and the implications of defamation

In a recent High Court ruling in Northern Ireland, Channel 4’s Embarrassing Bodies host Dr Christian Jessen was ordered to pay damages to the former leader of the DUP, Arlene Foster, in relation to a defamatory tweet posted in December 2020.

The tweet made an unfounded claim that Mrs Foster was having an extramarital affair. Dr Jessen was initially approached by Mrs Foster’s Solicitors on Twitter, who asked him to take down the tweet, to which Dr Jessen replied with ‘LOL’. Dr Jessen’s tweet was eventually removed on 7th January 2021.

In providing its Judgment, the Court considered that the tweet was an ‘outrageous libel’ and was ‘grossly defamatory’ and had resulted in serious harm to Mrs Foster’s reputation and personal relationships. Mrs Foster was awarded £125,000.00 in damages.

Defamation is a complicated issue. It is no secret that defamation has only become more complicated and prevalent since the rise of social media. There is a common misconception amongst many that they are in some way protected behind their social media accounts. Dr Jessen himself has expressed dismay of the legal consequences of, in his words, a ‘stupid tweet’.

What is defamation?

While defamation in England and Wales differs slightly from Northern Ireland, the fundamental principles remain the same. Defamation includes libel and slander. Both involve the publication of defamatory material that has a harmful effect on a person’s reputation but they differ in the form that they are made.

Slander is defamation that is generally published by spoken words or gestures, while libel is published in a more permanent form. This distinction is important when publishing anything on the internet. Whilst Dr Jessen’s tweet was removed, it could have been seen by thousands of his followers and shared and screenshotted thousands of times. Once something is published on the internet, it is generally considered to be out in the world forever and cannot be undone. This of course heightens the impact of damage caused to one’s reputation

In order to bring a defamation claim in England and Wales, you need to be able to show that the defamatory statement has lowered your estimation among reasonable right-thinking individuals.

In the case of Mrs Foster, the allegation that she was having an extramarital affair would have caused damage to her reputation. Mrs Foster is a public proponent of traditional family values.

In regards to social media, there also seems to be a threshold of reach when it comes to determining whether a personal reputation has been seriously harmed; for example, if someone had a Twitter following of two or three people, the reach of the defamatory statement would not be as extensive as Dr Jessen’s 300,000 followers. However, this should still be treated cautiously as tweets, or other social media posts could go ‘viral’ and lead to unexpected defamation claims.

Defences to defamation

There are a number of defences to claim for defamation, and a competent solicitor should discuss these options with you.

Truth

If the statement is objectively true, the claimant cannot recover damages to their reputation; for example, a man found guilty of theft cannot claim defamation if someone calls him a thief. However, the burden of proof is with the defendant to prove the truth of the statement.

Honest opinion

This is a little more complicated, the statement must indicate the basis of the opinion, and it must be an opinion that an honest person must have based on a fact that existed at the time.

Dr Jessen argued that his tweet expressed an honest opinion. The Courts determined that one cannot publicly express an honest opinion based solely on rumours circulating online. So it is worth being careful about what you repeat even if you believe it to be true.

Public Interest 

If something has value to the public, there are circumstances in which you can publish an unfounded statement even at the risk of damage to someone’s reputation.

Dr Jessen also attempted to use this as a defence as Mrs Foster is a political figure; however, this was dismissed as the tweet pertained to her personal life. Whilst the rumour might have been of interest to members of the public, it did not have a public benefit.

Offer of amends

Whilst this is not technically a defence, it is an opportunity to mitigate the harmful effects of a defamatory statement on an individual’s reputation. An offer of amends is the opportunity to publically recant and apologise for the defamatory statement at an early stage of potential litigation. This may still result in the claimant recovering some damages; this would typically be far less than they would have been.

Conclusion and consequences

In conclusion, it is easy to dismiss posts on social media as fleeting. Still, they may cause some serious financial and legal consequences, and it is better to think carefully before you post.Dr Jessen has now intimated that he may have to declare bankruptcy due to the draconian nature of the court award.

If you feel like you have been defamed or if you have been accused of defamation yourself, please contact us, and our experienced dispute resolution solicitors will be able to give you sound advice.

This article was written for Redkite Solicitors by Caitlin Harris, one of our Dispute Resolution Team. To find out more about Caitlin visit her website profile by clicking here.

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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