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Wednesday 26 September 2018
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Social media is publishing, Seepersad rules

WHEN JUSTICE Frank Seepersad delivered his ruling on case CV 2016-02974, he did so in the clear understanding that this was a document that would guide the next generation of local libel cases, which will increasingly come from the electronic aether, not from traditional media channels.

He also set a legal cat among the flocks of cacophonous pigeons that roost in the dank rafters of Facebook.

The case pits neighbour against neighbour, a family against an apparently angry woman, in a situation that escalated from curses in the front yard to violently ugly statements on Facebook.

After dismissing a defence ploy to apply for a relief of sanctions on the grounds that there was no formal application registered, he lays out the situation with admirable clarity, codifying the shattered relationship between the aggrieved family and their tormentor.

The defendant, who maintained a Facebook profile under the pseudonym Jenelle Burke, acknowledged ownership of the page, but claimed others had written the posts.

The judge then subjected the case to four guiding principles. Were the words defamatory? Did the words refer to the claimants? Were the words published by the defendant? Were they communicated to people other than the claimants?

“Proof of ownership of an account in the absence of evidence as to the IP address of the user may be established where there is evidence as to a pattern of communication on the social media forum which indicates the identity of the user, having regard to the nature of the information which could include personal photographs, details of activities and social events as well as any other matter which would be personal and known only to the user,” he wrote.

He further determined that publication on social media was publishing: “Without reservation this court concludes that postings and information placed on social media sites such as Facebook, Twitter, Viber and WhatsApp has to be viewed as publications and the common law test in relation to libel will apply to same.”

Screenshots of the posts, which are too vile to be related here, also established the privacy settings of the posts, which were set to global viewing.

In dismissing what he described as “the Shaggy defence,” the judge offered clear statements of legal responsibility in the TT court system for social media postings under three measurements:

* The post was published by the account owner.

* The post was published by third parties allowed unrestricted access to the account, a trust that puts responsibility for the posts on the account owner.

* The post was published by an anonymous person or people (read, hacker), but the account owner failed to remove or edit the post as soon as it was “reasonably practicable” to do so.

Police reports of the shouted statements made by the defendant were found to mirror closely the accusations made in the posts, and this weighed against the defendant’s denials of responsibility.

The judge, acknowledging the shortfalls of local law in the digital age, called for “strict liability legislative provisions” that would mandate access, on proper request, to information that would establish “IP addresses, the holders of mobile phone numbers and any other relevant details that may be needed to readily identify the owner of a social media account, mobile device and/or messaging applications.

“Within the public purview there is a misguided perception that the interaction over social media with flagged friends, whether on Facebook, Twitter, WhatsApp, Viber, is private. This notion has to be dispelled.

“Social media ought not to be viewed as an unregulated media forum and anyone who elects to express views or opinions on such a forum stands in the shoes of a journalist and must be subjected to the standards of responsible journalism which govern traditional media.”

Mark Lyndersay is the editor of technewstt.com. An expanded version of this column can be found there


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