In an era where a tweet can go viral in seconds and a Facebook post can reach millions in milliseconds, the line between free speech and defamation is increasingly blurred. Social media has emerged as a modern-day battleground on which reputations can be tarnished with a single tweet, blog post, or comment.
Unlike traditional forms of defamation which were limited by geography and access, digital defamation transcends borders, amplifying the damage and complicating legal redress. Hidden behind pseudonyms and fake profiles, individuals spread false information and defamatory statements with a sense of impunity. The resulting damage to reputations can be far-reaching and even irreparable given the viral nature of modern media.
Individuals hiding behind anonymous profiles must be made aware that anonymity does not shield them from the serious consequences of making defamatory statements.
Understanding defamation
Defamation involves the making of false statements that harm another person’s reputation. A defamatory statement causes a reasonable person to:
- think less of the person being referred to,
- doubt that person’s ability to do their job effectively,
- shun or avoid that person, or
- treat that person as a figure of fun or an object of ridicule.
There are two types of defamation: libel and slander. We will discuss libel which is defamation in a permanent form, such as print or even a recorded audio tape.
The claimant in a libel suit must prove three things:
- That the statement was defamatory: This involves interpreting the words, as an ordinary, reasonable person would, considering the context of the publication. The court then evaluates whether the words imply something negative about the person’s character.
- That the statement referred to the Claimant: The defamatory statement must be specific enough for others to recognise that it refers to the Claimant.
- That the statement was communicated or published to a third party: This defamatory statement must have been seen or heard by someone other than the person being defamed. In the context of the internet, “publication” occurs every time the defamatory statement is viewed or shared.
Unmasking anonymity
Although it may seem that anonymity protects individuals from defamation claims, legal mechanisms exist to unmask these anonymous individuals. Where a Claimant requires information as to the identity of an individual who has made defamatory statements against them, and that information is in the hands of a third-party such as an internet service provider (“ISP”), the court may issue an order compelling the third-party to disclose the identity of the anonymous user. This order is known as a Norwich Pharmacal order.
A claimant must satisfy three conditions to be granted this order:
- A wrong must have been carried out by a wrongdoer;
- The order is needed to enable action to be brought against this wrongdoer; and
- The person against whom the order is sought has facilitated the wrongdoing and is or is likely in a position to prove the information requested.
Furthermore, courts consider the making of defamatory statements behind anonymous social media profiles as an important factor in awarding aggravated damages against Defendants.
Legal Consequences in Saint Lucia
In Saint Lucia, defamation can carry both civil and criminal consequences.
Civil Suit: A person found liable for defamation in a civil suit may be ordered to pay money to the Claimant, which could include general, aggravated and/or exemplary damages. For example, in a recent case, the Defendant was found liable for defamation, and was ordered to pay EC$375,000.00 to the Claimant. They may also be required to issue a retraction of the defamatory statement and a public apology.
Criminal Suit: If a person is found guilty of libel, the Criminal Code of Saint Lucia states that this person may face up to five (5) years imprisonment.
Conclusion
Anonymous defamation has far-reaching implications for individuals and society. Individuals should be vigilant about what they post and repost on social media, understanding that anonymity does not absolve them from the legal consequences of defamation. However, the practicality of unmasking these anonymous profiles raises important questions. The process involves multiple parties, including ISPs, social media platforms and legal authorities, who each play a role in revealing the identities hidden behind the masks. For the ordinary person, this process can be daunting and expensive. This begs the question of whether the effort and resources required to unmask an anonymous defamer are worth the potential outcome.
Prepared by Iyka Dorival, Associate, Litigation & Alternative Dispute Resolution and Diana Thomas, Senior Partner.
FLOISSAC, DUBOULAY & THOMAS provides this information for educational purposes only. It should not be construed or relied on as legal advice or to create a lawyer-client relationship. This guidance note is not intended to be, and should not be construed as, legal advice for any particular situation and you should not act upon this information without seeking advice from a lawyer. If you have any questions, please feel free to contact us at info@fdt.law.