Posted by Matthew Pascall, senior underwriting manager at Litigation Futures Associate Temple Legal Protection
Last week’s settlement of Martin Lewis’s high-profile defamation claim against Facebook presents a noteworthy challenge to regulators about the practical application of media law to publishers of online advertising campaigns.
Proceedings were issued after financial fraudsters had created adverts supporting numerous investment schemes, which contained fake endorsements from Mr Lewis. The adverts appeared on Facebook.
His case, supported by litigation insurance and disbursement funding from Temple Legal Protection, posed an interesting question – who exactly was the publisher? It was Martin’s case that Facebook was the publisher and therefore responsible for the serious harm caused to his reputation.
To make out a claim for defamation, the claimant must be clearly identifiable, the statement or form of words complained of must have caused serious harm and in turn must have been published by the defendant to a third party.
Section 15 of the Defamation Act 2013 unhelpfully defines “publish” in the following way: “‘Publish’ and ‘publication’, in relation to a statement, have the meaning they have for the purposes of the law of defamation generally.”
So, if a Facebook user posts something defamatory, is that statement ‘published’ by Facebook?
In this particular case, it would appear that the offending adverts were paid for. It is difficult to see how Facebook could resist the argument that, by allowing advertisers to post material for reward, they became publishers of the material rather than merely providers of a platform on which other might chose to publish.
However, the position may not be so straightforward. In Tamiz v Google Inc  EWCA Civ 68 CA  1 WLR 2151, the Court of Appeal concluded that an internet provider that hosted a site containing defamatory material posted by a user was not a primary, or possibly even secondary, publisher and would not be liable unless it knew or ought reasonably to have known that the posted material was defamatory.
Once it knew or should have known this, it might then become liable.
Applying the decision in Tamiz, one can see how a failure to act on the part of Facebook in response to a suggestion that a post or advert is defamatory, could render them liable as a publisher.
Increasingly, Facebook and others are committing themselves to ever more extensive vetting of content to remove ‘fake news’ and obviously offensive material.
At some point, could that level of oversight of the material that is posted, start to fix Facebook with enough constructive knowledge of the content of that material so as to make it liable when any of that material is defamatory?
Martin Lewis’s case settled on agreed terms: Facebook agreed to donate £3m to Citizens Advice so that the charity can better support victims of investment scams, and agreed to launch a scam ads reporting tool.
The settlement includes costs, but insurance cover was vital. As Rory Lynch, Mr Lewis’s solicitor at London firm Seddons, says: “Martin took on significant reputational risk in suing a world behemoth like Facebook. In addition, and as you can imagine, Facebook use expensive City lawyers, so the adverse costs risk was significant.
“This was also potentially a test case which meant it would have been hard-fought and long-winded, further enhancing the adverse costs risk. The court fee was also at the maximum range due to potentially large damages.”
Ultimately this case leaves open the question of the extent to which material that appears on Facebook is or is not published by the social network. That, in turn, gives rise to an important question of policy for government: How do you make media law work for today’s media?