Judge rules: Facebook users will pay $$ for their defamatory posts

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On Monday, Justice Frank Seepersad ruled that Jenelle Burke made a series of unsubstantiated libellous statements that caused the family to suffering “shame and embarrassment” since those statements were false and may have been seen by thousands.

Burke published posts stating that the family was engaged in incestuous activities.

The messages stated that the father of the family was a rapist who would engage in sexual relations with his stepson and daughter who is a minor. Telephone numbers belonging to the family members as well as their photographs were attached to the posts. One of the posts also stated that the minor, who was seven years old at the time, was involved in prostitution at her school.

At the court hearing before Justice Seepersad, the family members denied that such activities had ever taken place.

The posts even resulted in officers of the Child Protection Unit visiting the family on one occasion to carry out investigations into the allegations which they eventually found to be untrue, the mother of the family testified.

According to their claim, the family was once friends with the woman but, because of a dispute, she began making continuous insulting remarks towards them. A number of police reports were made, but the insults continued.

In February 2016 the family first became aware of the Facebook posts on Burke's page, before they took screen shots of them and printed copies which are being used as evidence in the case.

In her defence statement, Burke admitted that the messages were posted on her wall but denied she was the one who did so. She contended it may have been placed there by someone else who may have had access to her account. She said as soon as was saw the posts on her page, she deleted them.

Burke however chose not to go into the witness box to be cross-examined by attorneys for the family.

In delivering judgement in the Hall of Justice,, Port of Spain, Seepersad stated: “The damage which social media postings can have is significant, as the disseminated material creates a perpetual imprint in cyberspace and there is no deletion or rectification which can be effected with respect to information uploaded to the World Wide Web, quite unlike a print copy of a book or newspaper, the copies of which could be destroyed”.

He said: “The reach and permanency of social media is such that extreme caution has to be exercised by its users. The law needs to be pellucid, so that all concerned must understand that social media use has to be engaged in a responsible way. Anonymity cannot obviate the need to be respectful of people's rights and users cannot recklessly impugn a person's character or reputation. Words in any form or on any forum, matter and must be used carefully and not impulsively.  Within the public purview there is a misguided perception that the interaction over social media with flagged friends whether on Facebook, Twitter, Whatsapp, Viber, is private. This notion has to be dispelled. Such communication once uploaded becomes public and the said communication enjoys no cover of privacy protection. The advent and continued use of social media now results in a circumstance where the rules, regulations, rights, and responsibilities which govern traditional media must be applied.  Social media ought not to be viewed as an unregulated media forum and anyone who elects to express views or opinions on such a forum stands in the shoes of a journalist and must be subjected to the standards of responsible journalism which govern traditional media”

Justice Seepersad said that in the case, the defendant did not dispute that the posts were on her Facebook account but she ran the “Shaggy defence” by saying “it wasn't me”. 

Her pleaded case outlined that the account was set up in 2010 by named parties who all had access to same. She said that she did not publish the posts but removed same when they were brought to her attention.  Social media accounts must be jealously guarded, just like a bank account and access to same should be restricted, as it is a forum where views expressed will normally be attributed to the owner of the account. One must be mindful that although the account is private, the posts emanating from the account occupy a public space and the content of these posts will be subject to public opinion and scrutiny as will the persons to whom the posts refer. Inevitably, if what the posts contain are malicious falsehoods, then those falsehoods can translate to real-world damage to someone's reputation. A word of caution is also extended to those who knowingly republish or “share” posts containing defamatory content. There must be some measure of restraint, if only to reconsider the accuracy or plausibility of truth in a post before its dissemination which is especially true of sensational and outrageous posts which can possibly cause irreparable harm”.

Justice Seepersad described Burke's Facebooks posts as reckless and scandalous.

He said:” It is difficult to fathom how any right thinking member of society would contemplate to publish words such as those posted on the Defendant's Facebook account.  Sadly however, far too often, social media is used as a forum to engage in this type of irresponsible and cruel discourse. This state of affairs cannot continue unabated and the Court therefore has elected to mould and apply the common law in a manner which gives some degree of protection to citizens. There is entrenched in local parlance the phrase, “You will pay for your mouth”. Given the technological revolution which now characterises modern life, this traditional phrase has to be subject to an update and all social media account holders need to understand that they may now have to “Pay for their posts”, if it is established that their posts are defamatory”.

Justice Seepersad ruled that Burke pay to her victims damages and costs which shall be assessed by a Master in Chambers at a later date.

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