Trinidad High Court Judge Warns Against Reckless Facebook Posting

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Justice Frank Seepersad

Says ‘Words in Any Form or on Any Forum, Matter’

PORT OF SPAIN, Trinidad – A High Court judge Monday described as “reckless and scandalous” the postings of a woman on the social media, Facebook, after ruling that unsubstantiated libellous statements had caused a family to suffer “shame and embarrassment”.

Justice Frank Seepersad, who said that the woman, Jenelle Burke, would have to pay to her victims damages and costs to be assessed by a Master in Chambers at a later date, said that the defendant did not dispute that the posts were on her Facebook account but she ran the “Shaggy defence” by saying “it wasn’t me”.

In her posts, which the court heard had may have been seen by thousands of people, Burke claimed that the family in question was engaged in incestuous activities and that the father of the family was a rapist who would engage in sexual relations with his stepson and daughter who is a minor.

The telephone numbers belonging to the family members as well as their photographs were attached to the posts. One of the posts also stated that the minor, who was seven years old at the time, was involved in prostitution at her school.

In court, the unidentified family members denied that the accusations and the High Court heard that the Facebook posts had resulted in officers of the Child Protection Unit visiting the family on one occasion to carry out investigations into the allegations.

The family members who said they were once friends with the woman, said despite making reports to the police, the insults continued and in February last year became aware of the Facebook posts on Burke’s page.

In her defence statement, Burke admitted that the messages were posted on her wall but denied she was the one who did so. She contended it may have been placed there by someone else who may have had access to her account. She said as soon as was saw the posts on her page, she deleted them.

But in delivering his ruling, Justice Seepersad warned that the damage which social media postings can have is significant, as the disseminated material creates a perpetual imprint in cyberspace and “there is no deletion or rectification which can be effected with respect to information uploaded to the World Wide Web, quite unlike a print copy of a book or newspaper, the copies of which could be destroyed”.

He said the reach and permanency of social media is such that extreme caution has to be exercised by its users.

“The law needs to be pellucid, so that all concerned must understand that social media use has to be engaged in a responsible way. Anonymity cannot obviate the need to be respectful of people’s rights and users cannot recklessly impugn a person’s character or reputation.

“Words in any form or on any forum, matter and must be used carefully and not impulsively. Within the public purview there is a misguided perception that the interaction over social media with flagged friends whether on Facebook, Twitter, Whatsapp, Viber, is private.

“This notion has to be dispelled. Such communication once uploaded becomes public and the said communication enjoys no cover of privacy protection. The advent and continued use of social media now results in a circumstance where the rules, regulations, rights, and responsibilities which govern traditional media must be applied.

“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,” the judge said.

He described Burke’s Facebooks posts as reckless and scandalous.

“It is difficult to fathom how any right thinking member of society would contemplate to publish words such as those posted on the defendant’s Facebook account. Sadly however, 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. There is entrenched in local parlance the phrase, “You will pay for your mouth”.”

Justice Seepersad said given the technological revolution which now characterises modern life, ”this traditional phrase has to be subject to an update and all social media account holders need to understand that they may now have to “Pay for their posts”, if it is established that their posts are defamatory”.

He said in this case, the defendant did not dispute that the posts were on her Facebook account, noting that she had indicated that the account was set up in 2010 by “named parties who all had access to same.

“She said that she did not publish the posts but removed same when they were brought to her attention. Social media accounts must be jealously guarded, just like a bank account and access to same should be restricted, as it is a forum where views expressed will normally be attributed to the owner of the account. “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 the persons to whom the posts refer. Inevitably, if what the posts contain are malicious falsehoods, then those falsehoods can translate to real-world damage to someone’s reputation.

“A word of caution is also extended to those who knowingly republish or “share” posts containing defamatory content. There must be some measure of restraint, if only to reconsider the accuracy or plausibility of truth in a post before its dissemination which is especially true of sensational and outrageous posts which can possibly cause irreparable harm,” the judge added. – CMC

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