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March 2, 2018

Tweet in haste, repent at leisure: When journalists can be liable for what others have published

By Greg Callus

You probably haven’t heard of Sir Philip Burrington Dingle.

Before he was knighted, he was the Town Clerk in Manchester, and was libelled by the Daily Mail on 16 June 1958, in an article about the purchase by the Manchester Corporation of a private cemetery.

Dingle’s case went to the House of Lords, who decided that other publications of the libel would not mitigate the damages owed by the defendant: it was not enough, and certainly no defence, to say that someone else had caused the reputational harm as well.

This all took place in a much simpler age when newspapers and broadcasters created the content and we readers, listeners and viewers consumed it.

Now we consumers also produce our own content (on Twitter and Instagram and Snapchat): we are ‘pro-sumers‘.

Whereas the vox pop interview was the clichéd staple of the newscaster, now few outlets publish stories online without embedding tweets or allowing comments below-the-line, or sharing the views of some of the readership with the rest.

Indeed, thanks to the 45th President of the United States, much of the news is directly concerned with what someone tweeted, and how other people tweeted in reply. O tempora, o mores.

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Also in the US, the Federal District Court for the Southern District of New York has issued a landmark opinion in Goldman v Breitbart & ors.

District Judge Katherine Forrest has ruled that where a website embeds a tweet, and that tweet includes an unauthorised copyrighted photograph by a person who is not the tweeter, that the website can be liable for copyright infringement.

The websites’ argument had been that they were not liable because they were not hosting the copyrighted image at all – by using the embed function, their websites showed content hosted on Twitter’s servers, but that their own servers didn’t host a copy.

This ‘server test’ has found favour in the Ninth Circuit Court of Appeals (which covers the West Coast, including California), but not universal acclaim elsewhere. It didn’t work in New York this time.

The decision has caused minor panic among media companies in the US (see this great explanation from the Nieman Journalism Lab at Harvard University).

So when can you be liable for what other people have published?

On precisely this question, last week I got caught up in a minor Twitter-storm between Neil Henderson (@hendopolis) and Dan Hodges of the Mail on Sunday (@DPJHodges).

Neil regularly tweets pictures of the next day’s newspaper front pages to tens of thousands of followers. He was concerned about hypothetical libel risk of doing so in some cases: Dan didn’t think there could be any liability. With respect, I think Dan is quite wrong.

As a good general rule of thumb, everyone who is remotely involved in the act of ‘publication’ of a defamatory statement can be liable for the consequences of that publication. This used to extend even to the printer who clapped his hand down on the presses.

To help protect newsagents (see the case brought by PM John Major against WHSmith) section 1 of the Defamation Act 1996 supplemented the common law defence of ‘innocent dissemination’ by providing that you had a defence if you were a ‘publisher’ who (without negligence) didn’t know that the contents of what you had published was defamatory.

That defence has been strengthened by section 10 of the Defamation Act 2013.

But if you’re a professional journalist or media outlet and you do know that the content of a third-party you are publishing is defamatory, you can be just as liable as the original author.

It is for the would-be claimant to pick who they want to sue, and while some will go after the richer institutional defendant (newspapers have much more money to recover in damages) some claimants will prefer to pick off the weaker one (such as the journalist who can’t afford to fight unless indemnified by his employer, but has enough to lose) who is more likely to settle quickly.

Indeed, a person who tweets a picture or summary of a seriously defamatory newspaper headline is in more difficulty than the newspaper. The newspaper will have all of its reporting (published and unpublished material) to prove the story true. It will have been legalled to death before publication (or should have been).

Importantly, whether in print or online, the headline will have to be read (as a matter of law) along with the accompanying article to allow the court to determine its true meaning (which means the ‘bane’ and ‘antidote’ of accusation and denial can be taken together): see Charleston v News Group Newspapers [1995] 2 AC 65.

But a person who tweets, not a link to the newspaper story in full, but just a photograph of the headline can only rely on the headline for the ‘meaning’ of the words. They will not benefit from construing that headline by reference to the article, and will not have access to the reporting that justifies it.

They won’t have done the checks of a responsible journalist to avail themselves of the public interest defence. They won’t be able to say: “I’m just saying what they said” (that breaches the so-called ‘repetition rule‘). They are potentially a sitting duck if that headline isn’t true.

As though to prove the point, Ben Bradley MP has now publicly retracted and apologised for his tweet which accused Jeremy Corbyn of selling secrets to foreign states. It has reportedly cost him a substantial sum in damages and costs.

It should be readily apparent that he got no assistance at all from the fact that the same defamatory imputation had at least seemed to appear in the front-page headlines in the days immediately prior to his tweet.

He was right to have folded: you can be quite sure that Corbyn’s lawyers will have known all about Sir Philip Burrington Dingle.

Greg Callus is a barrister specialising in media and communications law at 5RB chambers. He acts for both claimants and defendants alike, with a particular focus on open justice and reporting restrictions. He tweets as @Greg_Callus.

Picture: Reuters/Kacper Pempel/Illustration/File Photo

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