Facebook: taking defamation to new platform in SVG

Being sued for defamation is nothing new to the citizens of St Vincent and the Grenadines. According to members of the legal fraternity, as many as six defamation cases are heard on a weekly basis in each of the magistrate’s courts across the nation.

What is a new occurrence, however, is the recent surge in the number of cases that are being brought,{{more}} based on comments/statements made via social media – Facebook in particular.

Seasoned lawyer Ronnie Marks, of the law firm of Marks & Marks, said that such cases have been gaining international notoriety within the media over the past few years, and it is now touching regional shores.

“That is a new phenomenon,” said Marks. “We haven’t had that before, and the law was struggling to try to keep up. But there have been several judgements, starting in England with Twitter, and a few Caribbean judgements now.”

He said that he and several of his colleagues have found themselves having to represent such claimants, which in itself is no easy task, because there is a dearth of precedence within the region to support any current Facebook defamation claims.

One legal expert explained that with any defamation case, the claimant’s legal representative has to prove that the comments in question were published, that the words were defamatory, and that it has damaged the claimant’s reputation.

He pointed out that the specific difficulties with Facebook defamation (or any other form of social media) when pursuing a claim lies in jurisdiction, quantifying damages, and length of time comments are able to be viewed by the public.

In terms of jurisdiction, the question arises: in which jurisdiction does one engage the suit, if the location of the servers on which the social media platform is hosted is not the same as that of the person who posted the defamatory statement?

In regard to viewership – unlike print publication – the offensive statement can be deleted, making its reach somewhat finite. However, this only stands if the comment is not widely re-published by other social media users before deletion. If it has been, then the statement will continue to be circulated, despite the original posting no longer being visible.

The legal expert explained that the biggest difficulty is that of quantifying damages – which are awarded to reflect the offensive statement’s reach. That is, how many people have viewed it.

He explained that with print and broadcast media, it is relatively simple to determine viewership (and therefore quantify damages) based on the publication’s distribution. However, this is much more complicated on social media platforms, as not all the ways in which the offensive statement is able to be viewed can be traced.

What then often happens is that the damages awarded to the claimant do not cover how much he/she spent in pursuing the case.

“The sad thing about that is that’s why defamation sometimes… defeats the purpose,” he lamented.

He further mused that in the grand scheme of things, traditional defamation cases in SVG more commonly involve members of the same rural community “where everybody knows everybody.

“There’s a nice camaraderie that comes with that [living in a close community], but also familiarity breeds contempt!” he asserted.

“Philosophically… this whole concept of the global village on Facebook where everybody is butting up against one another has now made the Internet that village… Facebook, I’m sure is a useful tool but it is being abused.”

In an interview with SEARCHLIGHT, lawyer Zhinga Horne-Edwards said that in November 2014, judgement was passed at Kingstown Magistrate’s Court in favour of one of her clients (who was defamed via Whatsapp group messaging) – with damages limited to $15,000.

She warned that people need to be more careful about what they post on social media, and that they are being lulled into a false sense of security believing that by simply deleting the offensive statement, they will avoid action being taken against them.

“People are a little naive… thinking they are shielded by Facebook,” chided Horne-Edwards. “Facebook has an even wider circulation than newspapers.”

Marks also added: “Just by basic principle, it must be very wrong for you to destroy someone’s character by whatever means. It’s even worse now with the social media because… it’s a wider audience. The extent of the publication is even worse!”