Online posters will be sued for defamatory posts

There are no special favours for social media posters who post photos, letters or any kind of defamatory matter as they will face the same disciplinary action as journalists and media houses.

Justice Kathy Ann Waterman-Latchoo said people tended to value their reputation the most and anyone posting anything defamatory or breaching any confidence on social media could land in hot water.

Waterman-Latchoo was one of several speakers at Tuesday’s symposium to discuss “Freedom, Facts and Fake News: Straddling Media Communications in the 21st Century” at the Radisson Trinidad, Port of Spain.

“You get no special dispensation, no favours, no exceptions when you defame someone on Facebook instead of in the newspaper, on the radio or television. Defamation is words which tend to lower someone in the estimation of right thinking members of society. Tweeting that a politician is corrupt, a teacher is a sexual predator or a woman is an unfit mother will get you in hot water the same temperature as if you publish the accusation in traditional media.”

Waterman-Latchoo said bloggers, Instagram gurus and Facebook activists of any category have to abide by the law just like journalists or any other citizen.

She said the person who posted the material was the publisher and if it was defamatory, he or she was liable to be sued as soon as the material was accessed and read. She said forwarding an email that made harmful allegations about someone made the person liable to be sued for defamation.

Newspapers which carried articles on their website as well as the actual paper which allowed readers to post defamatory comments will be held responsible.

“The one thing people tend to value the most is their reputation. It has always been a bad thing to bad mouth people. Before Twitter and Facebook it has always been a bad thing. The advent of social media is the bad things can go viral in seconds and spread internationally. People also tend to be much looser on social media and the same thing they might not write in a letter to the editor of a newspaper.”

Waterman-Latchooo said while freedom of speech was guaranteed by the Constitution, it did not give people the licence to make unfounded statements on others.

She said while there was no immunity for social media users there were some differences in courts for defamation suits involving social media.

“When bad things are published in a newspaper it is really easy to know who to sue-- the newspaper and the person who wrote it. But when bad things are published in social media can you easily identify who that is? Social media accounts must be jealously guarded same as a bank account. The holder of a social media account must be held accountable for what is published there. Proof of ownership of an account in the absence of any evidence as to the IT address of the user can be established.” She said calling something a liar, thief or corrupt was libel, and so to was using innuendo.

“Readers are smart, they can read the innuendo.”

Advertisements, effigies and paintings and calypsoes can also be libellous.

“I don’t know of any case of anybody successfully suing about a defamatory calypso. It is not because they had immunity, but perhaps because of our cultural tolerance. And you know if you take them to court they will sing about you again next year.”

Waterman-Latchoo said a person had the right to express him/herself, but there were certain boundaries. She said there are certain defences available, but it was a balancing act.

Justification of truth was one, but was not easy to support without facts. Privilege meant whatever was said in court and Parliament can be reported. Also, if a journalist made an error but could show that he had done due diligence, the law could offer some protection.

Unintentional defamation, innocent dissemination and consent, apology and limitation were also defences that could be used. She said besides defamation, people can be sued for contempt of court which included predicting the outcome of a case, commenting on an active case, publishing a confession and using photos when identification was an issue.

She said there was also breach of confidence where while the words were not defamatory, the material was obtained and published in a breach of confidence. This included publishing trade secrets, medical reports, financial information, spousal communication and revenge porn.