What are the litigation perspectives to refute content from social network

What are the litigation perspectives to refute content from social network

What are the litigation perspectives to refute content from social network

Social media are one of the most popular platforms for defamation. The posts contain frankly insulting information about the involvement of individuals in corruption, activities for the former criminal power, immoral behavior in everyday life, and so on. Certainly, those who are charged with such violations, intend to protect their reputation and punish the offender.

What are the specifics of the case law regarding the defamation of content from social networks, and what difficulties can potential plaintiffs face with? 

Based on our practical experience, the main difficulty is to confirm that a particular person is the owner of an account on a social network. Today it is easy to create a fake account and to write anything from it. 

The content issued from a fake user can cause a lot of headaches to the lawyer of a client who has suffered from false information and who wants to protect his honor, dignity and business reputation. In this category of cases, the plaintiff’s advocate has to prove the fact of dissemination of information and to indicate the author of this information, the person who disseminated this information and the owner of the site on which this information is posted (paragraphs 9, 12 of the decision of the Plenum of the Supreme Court of Ukraine “On judicial practice in cases of protecting the honor and dignity of an individual, as well as the business reputation of an individual and legal entity").

In practical terms, there are cases when the author of the information - the defendant in court, recognizes that he owns an account on the social network. This holds particularly true for public persons whose pages in social networks are popular. For this reason, it is clearly undesirable to deny in court the ownership of a page. In this case, the well-known rule of the lawsuit applies - the circumstances recognized by the parties are not subject to proof before the court. And it makes the challenge for the plaintiff’s lawyer much easier.  

It is appropriate to recall the special mark in the social network Facebook in the form of a checkmark in a blue circle next to the username, which should confirm the account (s) belonging to a particular person. The procedure for such verification is not accessible to all users (only to politicians, athletes, artists, journalists). This procedure is governed by internal rules and to a large extent is left at the discretion of Facebook, which can either assign a checkmark or uncheck it. However, due to the fact that verified Facebook accounts belong to public persons who actively use them to increase their own popularity, it is unlikely that such well-known persons will dare to abandon their words and claim in court that they do not own an account. Recognition by the defendant of the fact that the account belongs to him releases the plaintiff from the obligation to prove this fact. 

If the author chooses the position “It's no skin off my nose”, the plaintiff will have to prove to the court that the defendant is an owner of the account on the social network from which the information was disseminated. Evidence of ownership must be convincing and reliable. Even the administrator of a social network does not have reliable evidence of an account related to a person, since during registration a user can specify any data, for example, someone else's or an imaginary one.

There are widely spread situations when a defendant rejects his or her ownership of account in judicial practice. In such situations the court’s position is the following: if the plaintiff has not proved that a defendant is an owner of the account from which the information was disseminated, a claim cannot be satisfied.

However, we don`t say that this is a lost cause. Evidence of the account belonging to the defendant, various indirect indicators may constitute evidence of connection to the personality of the defendant with the account. For example, the presence in the account of a phone number or e-mail address that matches the number and e-mail address of the defendant legal entity in the state registry, or a link to the website owned by the defendant, which may be easily established through special services. The presence in the account and on the site of the same information materials, reciprocal hyperlinks between the site and the account can also indicate that they belong to the same person. Finally, you can try, although it is not always possible, to establish the IP address from which the user of this account logged into the social network most often and then to establish the approximate location of this user, which may coincide with the place of registration or the place of permanent residence of the defendant.

To sum up, it is not easy, but possible to challenge inaccurate information disseminated in social networks before the court. The plaintiff’s advocate is required to have a uncommon approach, a well-thought-out and balanced trial strategy, as well as professional work with the evidence base. Each case has its own specificities. Therefore, for further questions, please contact us for legal advice.