The advent of social media has revolutionised the way humans interact. The dissemination of information is no longer limited to newspaper articles, televised speeches, mass gatherings or casual conversations. With social media, an audience of hundreds, and often many more, is literally at our fingertips.
Of course, being able to connect with so many people with such ease is something which has huge benefits to society. News travels quickly, important information is readily available and conversing between friends and colleagues has never been easier. The flip side to this world of instant information, however, is the fact that harmful messaging is also far more readily available and widespread.
We are all familiar with what one might consider the ‘traditional’ defamation cases; an article published in a newspaper about a high-profile individual, a letter displayed in the premises of a local club or pamphlets distributed to members of the public. Social media however is establishing itself as the prominent arena for defamatory publications.
No longer does one have to go through the pain of printing a leaflet or sending a letter to the local newspaper. Neither does one need to attract the attention of crowds on the street whilst they stand on a soapbox in order to defame someone else’s character. Social media was designed to amalgamate the facility and impact of sharing information which traditional methods possessed and maximise the potential for someone’s views to be shared to a very wide, yet targeted audience, through the tap of a button.
This has of course led to a wide array of litigation throughout the world, as courts have grappled between protecting the constitutional right of freedom of expression and also that of protecting peoples’ reputations from extremely damaging publications.
Just last year, in Gibraltar, judgment was handed down in a high-profile case involving the Chief Minister of Gibraltar and a Spanish MP, Agustin Rosety Fernandez de Castro, a member of Vox, the right-wing political party in Spain (F Picardo v Agustin Rosety Fernandez de Castro [2022/GCS/20]).
The background facts of the claim were that Mr Rosety had tweeted a series of highly defamatory tweets against the Chief Minister of Gibraltar. The claim was started on 31 January 2020, meaning that the court had the power to determine the claim under the Judgments Regulation and to apply Brussels Recast (by virtue of Article 67(1)(a) of the Withdrawal Agreement).
At the time the defamatory tweets were published to Mr Rosety’s followers, he had tens of thousands of followers, the majority of which were Spanish (and likely members of the Vox party).
The Claimant limited his claim to damages arising from publication of the tweets in Gibraltar and when the matter first appeared before the Supreme Court of Gibraltar, the Chief Justice was not satisfied that the evidence sufficiently distinguished between publication to Twitter users worldwide and those resident in Gibraltar. This meant that an analysis had to be undertaken in order to ascertain, as best possible, the extent of publication in Gibraltar.
The difficulty with such tasks is that often times the algorithms underpinning how social media platforms function, will cause a post to be published to other users, even if they are not following the author of that post. Based on a user’s interests, search history, mutual friends and more, it was very likely that many Gibraltarians had seen Mr Rosety’s tweets despite not following him directly. In fact, when the defamatory tweets were initially published, it was a topic which was spoken about at length amongst Gibraltarians owing to the highly prejudicial nature of the publications.
This therefore posed a difficulty in terms of quantifying the extent of publication and therefore damages. Of course, damage to one’s reputation is only one factor the courts will consider when awarding damages, with others being compensation for distress and the need for any award to serve as a public sign of vindication. However, for all those factors, as held by the Chief Jutsice in Picardo v Sindicato Colectivo de Funcionarios Publicos Manos Limpias and Remon [2015 Gib LR 228], “the extent of publication is very relevant”.
An analysis was therefore undertaken whereby the ‘Quote Tweets’ were analysed in order to determine whether the defamatory tweets were widely published in Gibraltar. Having done so, it quickly became evident that as expected, several local Twitter accounts had republished the tweets and that therefore publication to thousands of people was likely to have occurred in Gibraltar.
What this decision of the Supreme Court of Gibraltar emphasises however, is the fact that serious thought should be given to the publication of any material on social media. Most, if not all of us, will have read or experienced an attack on someone’s reputation emanating from a ‘keyboard warrior’ on social media. The ease of being able to type out some text, tap ‘publish’ and instantly publish a message to a wider audience is something which has never before existed. This means that far too often we are seeing seriously damaging material published, shared and read by too many people before the author or social media platform decides to remove the material. Such widespread publications need not emanate from the account of a high-profile individual either, social media algorithms can, and often do, publish material from an account with very few followers to a far wider audience.
An interesting grappling exercise for the court however will continue to be the determination of the extent of publication of any given defamatory post on social media. The courts naturally place huge importance on the extent of publication, but in cases, such as that of Rosety above where such information is not readily available, the courts will need to assess the evidence before them before coming to a conclusion about how widely, or otherwise, the publication in question was disseminated. In the absence of such evidence, it is unfortunately the case that many claimants may succeed on liability, but only be awarded relatively low damages.
With the continual development of social media in finding more ways to retain users’ attentions for longer and flood them with yet more information, it is beyond a shadow of a doubt that this area of the law will continue to develop at a rapid pace. Whether the methodology used to calculate damages will change, is something to keep a close eye on.
Samuel Marrache was Called to the Bar of England & Wales in 2021 and to the Bar of Gibraltar in 2022. Samuel is a barrister in the Litigation Department of Hassans and was part of the legal team representing the Claimant in the Picardo v Rosety case.
