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Judge warns against social media posts

Published: 
Tuesday, February 6, 2018

Social media users are being advised to exercise extreme caution when making posts, as citizens who fall victim to reckless and malicious statements now have an avenue of recourse.

Delivering a 18-page judgment in a landmark case, brought by a couple whose neighbour falsely accused them of sexually abusing their children in a series of Facebook posts, High Court Judge Frank Seepersad considered social media cases in Commonwealth jurisdictions to develop a local position on the issue as there are currently no laws which directly address it.

“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,” Seepersad said.

While Seepersad noted that local laws only contemplate libel as printed or written words on traditional formats, he said it should be interpreted to include statements on social media platforms.

“Without reservation this court concludes that postings and information placed on social media sites such as Facebook, Twitter, Viber and Whatsapp has to be viewed as publications and the common law test in relation to libel will apply to same. Such post are in a comprehensible form and they can be accessed and read by a potentially worldwide audience,” Seepersad said.

Stating that many users had the “misguided perception” that posts of the their accounts were private, Seepersad said that they do not have privacy protection once posts are uploaded.

“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 persons to whom the posts refer,” Seepersad said.

He also noted that social media users would be held to the same standards as traditional media practitioners.

“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,” he said.

Seepersad said users would be held accountable if they make defamatory posts on their accounts themselves, if they give third parties permission to make the posts and in circumstances where defamatory posts are uploaded by unknown parties and are not removed within a reasonable time.

He also called on Government to introduce legislation to address the issue as he admitted that it would help the court obtain information from service providers in instances where there are security breaches and the unauthorised use of social media accounts.

“The required legislative intervention is not optional but is mandatory!” he said.

ABOUT THE CASE

In the lawsuit, the family were claiming they were defamed by Janelle Burke in a series of posts on her Facebook account in January 2016.

The family’s names have been withheld by the T&T Guardian to protect the identities of the woman’s teenage son and the couple’s seven-year-old daughter, who were the subject of the posts.

Testifying at the trial last week, both parents claimed that they were close friends with Burke up until they began doing construction work on their home in 2014.

They claimed that after several months of verbal abuse, the teenager showed his mother a series of screenshots of the posts on Burke’s Facebook page, which he received from a friend.

The screen-shots were tendered as evidence in the case as the posts were removed before the lawsuit came to trial.

The posts alleged that his stepfather was guilty of sexually abusing him and his sister and that his sister and mother were prostitutes.

Attached to the posts were individual photographs of the family members and their telephone numbers.

The couple claimed that three days after being informed of the posts, they were visited by police officers from the Child Protection Unit, who interrogated them over the allegations of sexual abuse.

They were called for a subsequent interview, before being cleared of any wrongdoing.

While Burke admitted that the posts appeared on her page, she claimed that they could have been posted by a number of people who had access to her account including her sons and another relative. Burke was given an opportunity to testify in her defence but she refused.

Seepersad rejected this as he pointed out that the posts mirrored the insults which she had directed towards the family in the past.

“It is difficult to fathom how any right thinking member of society would contemplate to publish words such as those posted on Burke’s Facebook account,” Seepersad said.

While Seepersad ruled in the family’s favour, he did not assess the compensation to be paid to them as he referred the issue to High Court Master.

The family was represented by Glen Bhagwansingh, while Adrian Thompson represented Burke.

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