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If you’re not sure of the libel laws, read our beginner’s guide. Of course, these are only the basics; there are hundreds of nuances that can determine whether a statement is defamatory or not. If you intend to publish things that you know are contentious, you need to understand all of these – or get a very good lawyer to check your content before you publish. But even if you don’t intend to court controversy, there are some bear traps of which you should be aware.
If you comment on your competitors in a blog or brochure, you need to be very careful. A statement is defamatory if it disparages the claimant in their business, trade, office or profession; this would apply if it imputes disreputable conduct in their business, or shows that they are ill suited to conduct their business.
Saying falsely that someone has been declared bankrupt would therefore be defamatory. Saying falsely that someone has retired would therefore not be defamatory, however it could leave you subject to a malicious falsehood claim as it could have a serious impact on their business.
Criticising a competitor’s products or services can also be defamatory if your review implies disreputable conduct in their business or shows that they are ill suited to conduct their business; implying dishonesty, carelessness or incompetence are all likely to land you in trouble.
Individuals can sue for libel, but so too can corporations if a statement is injurious to its trading reputation.
That won’t necessarily get you out of trouble. In 1826 a judge ruled that: “It is not necessary that all the world should understand the libel; it is sufficient if those who know the claimant can make out that he is the person meant.” This ruling holds true today.
For example, a report of bad teaching and poor discipline at a school may be inferred as reflecting on the head teacher; the only defences here would be justification or fair comment.
Not naming names can land you in more trouble. If you publish a damaging statement that you can prove to be true about ‘a member of the board’, you may be sued by other board members; they could argue that people know they are on that board and have therefore inferred that the statements apply to them.
This is where the rule of innuendoes applies: although a statement may be innocuous on the surface, it can still be defamatory to those with special knowledge. This is what tripped up Sally Bercow, the wife of the Speaker of the House of Commons, who tweeted: “Why is Lord McAlpine trending? *Innocent face*”. The statement itself appears harmless, but the high court upheld that anyone following the media frenzy at the time might have imputed that Mrs Bercow was suggesting that Lord McAlpine was a paedophile. Trying to be clever may be a stupid move.
The simplest rule to avoid a libel case is only to say nice things about other people; if you can’t say anything nice, it’s best to keep quiet. Alternatively, you can employ experts – like us – who have training in defamation laws and know how to keep your content on the right side of the law.
A word of caution: if you’re outsourcing management of your social media, it’s worth checking the qualifications and insurance of the companies you are approaching.