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Elon Musk’s Twitter Take Over – What Can It Mean For Free Speech And Defamation?

The entrepreneur and CEO of Tesla has recently bought the online social networking platform Twitter for $44 billion dollars, or around £34.5 billion pounds. The 11-member board of Twitter, that includes original co-founder Jack Dorsey, unanimously agreed to Elon Musk’s offer. Elon Musk has bought the platform for its “tremendous potential” and plans to introduce new features, create an open source algorithm and authenticate it’s users to eliminate spam accounts or bots.

Musk has taken to Twitter to state that “free speech is the bedrock of a functioning democracy”, as he also plans to create a series of changes in the platform’s content moderation policies to advocate for further “free speech” on the platform. He has also stated that he welcomes his “worst critics” as “that is what free speech means”. However, how far is too far for the worst critics when there may be no recourse via the internal procedures, currently available on the online platform?

What will this mean for the platform and for monitoring?

The proposal may be made under the headline of increased free speech, but there is a risk that it may also result in a decrease in user responsibility and accountability. The platform currently suspends accounts, the most notably banned individual being former US president Donald Trump, who Twitter stated was banned “due to the risk of further incitement of violence” following the storming of the Capitol last January. A movement towards a more lax internal approach to regulating online activity could see misinformation and hateful content seeping onto the platform.

If Musk’s plan is for moderation to be reduced for the sake of free speech, many human rights groups have expressed concern regarding the effect that removing these policies will have on the protection of users, especially the most vulnerable groups in society. Many advocates feel that it will lead to an increase in abusive language and hate speech on the site.

Should Twitter become completely unfiltered, it may seem that there is no response damaging and hurtful content posted online directed to the individual. However, whilst the policies of Twitter may be about to change, there is recourse in law though Defamation that will still condemn such behaviour, among other methods such as via the Protection from Harassment Act (both criminal and civil actions) and criminal sanctions for hate speech.

Defamation on social media = Libel

Perhaps once Musk’s takeover is complete in due course, there will be an increase in claims under the Defamation Act 2013 from scorned users seeking to teach trolls a lesson.

Defamation is defined as an untrue statement that tarnishes the reputation of a person or a company in the eyes of right-thinking individuals. The offending statements have to be published or communicated to a third party. If a defamatory comment is written down, such as via a tweet, it’s libel.

The assessment used is whether the statement made would lower you in the estimation of right-thinking members of society generally, and the publication of the statement has caused or is likely to cause serious harm to your reputation. This threshold is decided by the courts.

You could be able to bring a claim against each person who knowingly takes part in the publication of defamatory material, which means you could potentially have a claim against someone who ‘shared’ or ‘re-tweeted’ a defamatory statement written by another user.

You should look to bring an action against the author or publisher in the first instance, but if the author of the comments is anonymous, and you have no means of finding out who they are, you can sue the publisher of the comments, i.e. the social media platform.

An appetite for risk?

With that in mind, Musk’s prospective policy for authenticating users of the platform should in theory make it easier to find the identity of an account owner and therefore hold another individual responsible for the libel. In the alternative, with no means of finding out who the author of such a tweet may be, Musk opens Twitter up for a series of cases as a publisher of the comments and could be condemned for allowing the spread of hateful or harmful reputation damaging content in the first place.

Musk is no stranger to defamation, as he has been involved in a defamation case himself following a tweet he posted regarding the rescue of 12 boys trapped in a cave in Thailand in June 2018. The tweet was targeted at cave diver Vernon Unsworth, who sought $190m (£145m) in damages arguing that the tweet damaged his reputation. Mr Musk apologised on Twitter and in court for his actions and was ultimately successful in defending the claim.

Musk’s plans for Twitter could lead to further defamation claims being instigated amongst users or towards his newly purchased platform itself. Musk may be set to relax monitoring and banish internal consequences from Twitter following his takeover, but for now, there will still be several recourses in law to protect users.

If you’re in need of expert advice relating to defamation please call our highly experienced Dispute Resolution team today on 0330 822 3451 to talk through your situation with us. Alternatively, you can request a call back.