Do I not like that?


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Is it defamatory to 'like' something on Facebook, or on other social media?  The High Court has recently examined this issue in a recent case and found that that a mere 'like' is not enough.

The facts

In Caine v (1) Advertiser and Times Limited (2) Curry (3) Woodford , the Claimant, Mr Caine, brought a defamation claim arising out of the content of a Facebook page that the Defendants, Mr Curry and Ms Woodford, had 'liked'.

The Facebook page in question was a local affairs page concerning the town of New Milton called 'New Milton Watch – the Truth' (the NMWT Page). The NMWT Page contained content which was critical of Mr Caine and of a Facebook page about New Milton operated by Mr Caine. 

Mr Caine's claim was argued that the NMWT Page contained offensive and libellous material about Mr Caine and that the Defendants had 'liked' the NMWT Page. In 'liking' the NMWT Page, this created a hyperlink to the NMWT Page and the libellous material was therefore endorsed and redistributed by the Defendants.

The law

Mr Caine was seeking to rely upon the European Court of Human Rights (ECHR) case, Magyar Jeti Zrt v Hungary.  In that case, a Hungarian judge had ruled that a news website was liable for defamation because it had published a hyperlink to a defamatory video on YouTube. The news website said this ruling was a breach of its freedom of expression. The ECHR agreed. The ECHR decided that the use of a hyperlink to defamatory content in a news article was not the same as publishing defamatory information. Liability should not arise for merely including a hyperlink to the content (without endorsing or repeating it).

The decision

First, the Judge did not believe that the ‘liking’ of the NMWT Page by the Defendants amounted to an endorsement. The ‘liking’ created a mere hyperlink.  This was the case even if the Defendants had known that the NMWT Page contained defamatory content. 

Second, the Judge disagreed that the Defendants knew or could reasonably have known that the content of the NMWT Page was defamatory or libellous. Social media posts are fleeting and it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. Therefore the Defendants would not have known that the content was libellous, even if they were on notice of it.

Third, the hyperlinks created by the 'liking' were not in themselves defamatory. There was no facts alleged which suggested that anyone had used the hyperlinks to access the material.

Fourth, the requirement under the Defamation Act 2013 to show serious harm to the reputation of the Claimant was not met. 

Comment

Social media turns the average person into a publisher. Of course it is possible to defame someone on a social media platform. But merely liking a page which contains defamatory content is highly unlikely to be deemed defamatory by a court.

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