Can you be liable in defamation for what another person posts or tweets?

The recent High Court decision in Zahir Monir v Steve Wood [2018] EWHC 3525 (QB), in which liability for a defamatory tweet sent by a member of the Bristol Branch of UKIP was attributed to the then-Chairman of the branch, could have serious repercussions for our clients who communicate via social media group accounts, but don’t actually compose some or all of the messages the organisation posts.

The facts

UKIP’s Bristol branch had a twitter account which, on 4 May 2018, was used by John Langley, the Vice Chairman of the branch, to post a tweet he had composed. The tweet consisted of a photo of Sarah Champion, the Labour MP for Rotherham, with two men, including the claimant, Mr Monir. The tweet referred to the photo and stated: ‘Sarah champion labour candidate for Rotherham stood with 2 suspended child grooming taxi drivers DO NOT VOTE LABOUR.’

Mr Monir lived in Rotherham. However, he was not a taxi driver and, until the tweet, there was no allegation of any involvement with ‘child grooming.’ Consequently, he requested the deletion of the tweet, which did not happen until 1 June (as a result of Mr Monir complaining to the police).

Mr Monir sued Stephen Wood, the then-Chairman of the branch, for defamation, rather than Mr Langley, on the basis that Mr Wood was legally responsible for the tweet. On 19 December 2018, Nicklin J handed down his judgement in Mr Monir’s favour, finding that Mr Langley was ‘quite clearly’ acting as an agent for Mr Wood when posting material on the branch’s Twitter account.

The rationale behind the decision

The central issue was whether Mr Wood was legally responsible for the defamatory tweet. In coming to his decision, Nicklin J came to the following decisions regarding the use of the branch’s Twitter account:

• Mr Wood controlled the account (i.e. it was registered to his email address).
• Mr Wood could control Mr Langley’s use of the account by, for example, changing his password.
• Mr Wood had given other branch committee members details of the account.
• Mr Wood was ‘fully proficient’ in using Twitter.
• In 2014 Mr Wood had delegated use of the Twitter account, and other social media accounts, to Mr Langley.
• Although Mr Wood instructed Mr Langley to obtain prior approval for publication on these social media accounts, in practice, neither party observed this process.
• Mr Wood allowed Mr Langley to use the account to promote Mr Wood’s own candidacy for election.
• Mr Langley had been posting racist material on the account despite Mr Wood’s instructions not to do so.

Although Nicklin J found that Mr Wood was not actively aware of Mr Langley’s racist tweets and that, had he of been aware, he would have deleted them; the judge found that:

‘Mr Wood may be open to criticism on the basis that he should have been aware of what Mr Langley was posting. He was Chairman of UKIP Bristol (and bore ultimate responsibility for the actions of the branch); he was standing for election as an MP; Mr Langley was using the UKIP Bristol social media platforms to campaign for him; and, most significantly, to his knowledge, Mr Langley had been acting in an increasingly erratic way and specifically had posted the racist material on [another] Twitter account at the end of April, some 10 days before the election.’

Moreover, despite being aware of Mr Langley’s behaviour, the judge held that, in the run-up to the 2015 General Election, Mr Wood did not take control of the branch’s social media accounts. Therefore, the judge held that Mr Langley was ‘quite clearly’ acting as Mr Wood’s agent when he was posting material on the account (including the tweet relating to Mr Monir). Consequently, Mr Monir was awarded £40,000 in damages.

Comment

As is very common, many of our clients use social media platforms to communicate with their customers, employees, trustees, council members, parents and other stakeholders. To do this, we have found that they often use groups, which means that those responsible for the account are not necessarily the same as those who are actively ‘using’ the account (i.e. those that are composing and posting tweets etc.). Thus, this judgement could come as a shock to those account controllers.

It means that the controllers of social media accounts, such as Twitter, should:

• Make sure that any policies they have regarding the use of the account and the publication of materials are published in an accessible place and are clear as to what is and is not expected of the user(s).
• Ensure robust enforcement of these policies against the user(s) of the account. As, under the judgement, setting out general guidelines and then simply trusting users to adhere to them is not sufficient (according to Nicklin J, ‘Mr Wood cannot escape liability because Mr Langley acted against the general prohibition on publication of material that was an attack on others. He was acting within the scope of the job that had been delegated to him by Mr Wood’).
• Be aware of the fact that if users publish material that supports the controller’s overall aims (such as supporters publishing on behalf of candidates during election campaigns), then there is the risk that the actions of the user(s) will be attributable to the controller by virtue of the principles of agency.

Further information

For help with understanding your responsibilities regarding social media, please contact Peter Coe.                                               

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