Illustration by vvoennyy/Depositphotos,
BitDepth#1131 for February 08, 2018
When Justice Frank Seepersad delivered his ruling on case claim 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 social media generally and on Facebook in particular.
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.
Over 20 pages and 5,906 words, Justice Seepersad determinedly narrowed the case history to issues that will continue to challenge courts for years to come.
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 that the children of the neighbouring family had access to both their computer and the Facebook account.
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 persons other than the claimants?
Several pages of reference and analysis later, the Justice wrote:
“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.”
“Essentially therefore, the requisite evidence has to be adduced so as to lead the Court to hold on a balance of probabilities that the account in issue belongs to or was controlled by the purported user/owner.”
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” (after the popular song, It wasn’t me), the judge offered clear statements of legal responsibility in the TT court system for social media postings under three measurements.
The owner of the account posted the defamatory information himself/herself.
The owner of the account, expressly authorised and/or enabled third parties, without the imposition of restrictions, to use the account and the evidence adduced establishes a course of dealing which can give rise to the reasonable inference that the owner intended to take responsibility for the posts effected by such third parties.
The defamatory information was posted by an anonymous person or by persons who acted outside the scope of any authorisation given by the owner of the account as it relates to its use, and the owner of the account, when made aware of the defamatory content, failed to have the content removed, edited or deleted, as soon as, on the application of an objective test given the prevailing circumstances, it was reasonably practicable for him/her to so do.
Police reports of the shouted statements made by the defendant were held to mirror closely the accusations made in the posts, and this weighed the balance of probability 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.”
The jurisprudence, defined in this case as the prudent application of both existing law and readily relatable common sense to the evidence and narratives offered in court, is detailed, referenced and written to be referenced.
In anchoring his judgement within the accepted parameters of libel that are set as the boundaries for working journalists, the burden of responsibility now shifts, in a subtle but tectonic move, to those would use modern publishing platforms carelessly and without regard for consequence.
“The right to freedom of expression is not absolute,” Justice Seepersad wrote, “and must be exercised responsibly and in a manner which does not eviscerate the rights and freedoms of others.”
“There is entrenched in local parlance the phrase, ‘You will pay for your mouth.’ Given the technological revolution which now characterises modern life, this traditional phrase has to be subject to an update and all social media account holders need to understand that they may now have to ‘Pay for their posts’, if it is established that their posts are defamatory.”
“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.”