It must invite a tremendous sense of relief that citizens who have been on the receiving end of egregious social media assaults can now seek justice for defamation of character, even in the absence of laws specifically referencing the internet. Justice Frank Seepersad’s ground-breaking and thoughtful ruling on Monday in the case against Jenelle Burke is a welcome caution to those who utilise the Internet’s democratic spaces for ill will and a useful precedent for those wishing to seek justice for perceived cyber-libel.
The facts before Justice Seepersad were compelling and extreme: in her Facebook posts, Burke accused a family of engaging in incest, alleged that the father in the family was a rapist who participated in sexual activities with his stepson and daughter, that a seven-year-old was involved in prostitution at school, that the mother in the family had sexual relations with other men and women.
The family’s telephone numbers and photographs were also shared. The settings on her social media account allowed the public to view her posts.
In determining the case, the court used the three common tests of defamation: that the posts lowered the family’s reputation in the eyes of a reasonable person, that the family was identifiable as the subject of the posts, and that the posts were published to a third party.
In checking the boxes of those routine defamation criteria, the only aspect left to the judge’s interpretation was whether a social media post could be considered a publication.
Justice Seepersad’s accessibly-written judgment settled that question in the affirmative. In his judgment he noted that, “Such posts are in a comprehensible form and they can be accessed and read by a potential worldwide audience.”
To Burke’s defence that she was not responsible for the offending posts, the judge ruled that people must take responsibility for what happens on their social media accounts.
From a judiciary criticised for its disconnect from the real world has come a ruling and reasoning that touch the online behaviour and observations of hundreds of thousands of citizens.
Justice Seepersad is to be commended for his unprecedented ruling, for the care with which he reasoned and for the accessible language of his written judgment.
Defamation laws were mostly conceived in the old-media world. The emergence of social media as the communication method of choice for large numbers of people has made it more difficult to navigate the application of traditional legal principles.
In all defamation cases, a balance has to be struck between one person’s right to free speech and another person’s right not to have his/her reputation unfairly damaged.
We think Justice Seepersad achieved the required balance by judiciously protecting the claimants’ right to their good name and setting limits on the defendant’s right to free speech.