By Lucy Marlow, Solicitor, Thomas Eggar LLP
Following the recent BBC Panorama documentary concerning doping allegations against Mo Farah’s coach, Alberto Salazar, which have been strenuously denied, our thoughts turn to the legal issues involved in the protection of reputation, particularly in this era of social media.
As with so many high profile sportspeople, Mo’s reputation reaches beyond the personal, and becomes associated with the body of sponsors and sporting bodies with which he is aligned, and vice versa. It is estimated that Mo has earned £10 million in advertising and sponsorships with Nike, Virgin Media, Bupa and other companies. Alongside this, Mo is linked to various other sporting bodies, such as UK Athletics and England Athletics.
This entire network of individuals, sporting bodies and companies each have an interest in protecting their reputation in the light of any unfounded allegations. As social media is now the primary global forum for the expression of opinion, those with reputations to protect increasingly monitor what is published there, and may be able to take action as a result.
In England and Wales the tort of defamation provides protection for the reputation of individuals and businesses. To bring a claim a party needs to show that it actually has a reputation to protect in England and Wales, that the words published (e.g. tweets) have several characteristics: they convey an imputation capable of damaging their reputation, clearly refer to them, and cannot be proven to be true, or excused by any other legal defence. In addition, actual or likely serious harm must be shown.
Bodies operating for profit can only sue if they can show that the publication has caused, or is likely to cause, serious financial loss, e.g. an actual or likely serious drop in business as a result of the publication.
The most common defences are that the statements made are either true, or reflect the maker’s honest opinion. Such an opinion must be based on fact (e.g. actual evidence). In addition, individuals making postings which are both false and malicious (e.g. dishonest) could also face a malicious falsehood claim, if it can be shown that the falsehood caused (or is likely to cause) financial harm.
Given this legal backdrop, especially the threat of Court proceedings, social media users ought to be very careful. Those who go online and make potentially defamatory statements may think that removing their post and apologising will be enough, but the party who has been defamed may seek financial compensation.
The damages awarded in such cases can be substantial as it is intended to compensate the claimant for the damage to their reputation, and to compensate for any distress, hurt and humiliation that the defamatory statement caused. It is not unusual, especially where the party concerned has a high public profile (which is certainly true of Mo and his sponsors), to see the damages running into hundreds of thousands of pounds. The legal costs must also be considered; in England and Wales the loser is typically ordered to pay a proportion of the winner’s costs, in addition to having to pay damages.
One of the first High Court cases concerning defamatory online social media postings and sport dates back to 2012, involving a tweet made by Mr Modi, the Chairman of the Indian Premier League cricket franchise about Chris Cairns, the former New Zealand Cricket captain, alleging that he had a “past record in match fixing”.
The extent of the publication was significant as Mr Modi’s followers had retweeted to their followers and his comments were picked up and re-published on various sites worldwide (mainly cricket blogs). As with many defamation cases, Mr Cairns claimed that the allegations were defamatory as they were untrue and had a profound effect on his personal and family life given that they could vindicate his reputation for integrity.
Mr Modi defended the claim on the basis that the statement was true. However, the Judge held that the allegation was untrue and therefore found in favour of Mr Cairns, who was awarded damages of £90,000. This case shows how social media can enable a single posting to go viral causing significant damage.
Further, as demonstrated by a non-sports-related case, those who jump on the bandwagon of news stories involving unfounded allegations and send a tweet (even one they claim has no ill intent) can in certain circumstances find themselves at the sharp end of a legal claim, as Sally Bercow found out when she tweeted to her 56,000 followers “Why is Lord McAlpine trending?*Innocent Face*”.
This tweet followed shortly after a BBC Newsnight programme reported allegations that an unnamed leading Conservative politician from the Thatcher era was involved in a child sex abuse case, which received wide media coverage. Mrs Bercow apologised but Lord McAlpine successfully sued her for defamation and was awarded damages and costs.
Each of these cases demonstrates that posting (or re-posting) a statement which directly or indirectly refers to unfounded allegations should not be made lightly. Social media users need to be aware that the law is at the disposal of those who are defamed, even if statements are “only” made online. No doubt Mo Farah, the businesses and entities associated with him and their various advisers will be closely monitoring activity online and taking any action they consider appropriate to protect their reputation.
