SOCIAL MEDIA: CYBER TRAP DOOR TO DEFAMATION - JAMAICA’S DEFAMATION

ACT 2013 EXAMINED by COLEEN B. LEWIS

* Social media is increasing being used by persons worldwide. The nature and
characteristics of social media serve to advance the exercise of the human right to
freedom of expression. This article argues that while these qualities of social
media has its positives, it also conversely exacerbate the risk of social media users
being culpable for claims of defamation worldwide. The recently enacted
Jamaican Defamation Act 2013 includes provisions which are applicable to
publications via social media. This article will review those. KEY WORDS Social
Media, Online Defamation, Freedom of Expression, Jamaican Defamation Act,
Internet 1. INTRODUCTION

Happy Birthday Facebook!!! Recently the online social networking application

Facebook celebrated its 10 year anniversary.1 In January 2014, Facebook boasted
a registration of more than 1.2 billion active users, making it the most popular
social media and networking website.2 In the United Kingdom, approximately 98
percent of persons between 18 and 24 years are reported to actively use social
media.3 In Jamaica, 46.5 percent of the population has access to the Internet
from their home.4 These figures are demonstrative of the popularity of the use of
social media worldwide and of how popular, it is also likely to be within the
Commonwealth Caribbean. This popularity of social media is largely attributable
to the global, multijurisdictional and accessible nature and characteristics of the
Internet and by extension social media. This article will first examine how the
global and multi-jurisdictional and accessible nature and characteristics of social
media serve to advance the exercise of the right to freedom of speech generally.
It will then go on to review how these same characteristics of social media,
conversely, may exacerbate the exposure of the social media user to likely
culpability for the exercise of their human right of freedom of expression in a
wrongful manner. These characteristics lull the social media user into
complacency to make and or dissemination via social media defamatory
statements regarding another person. Finally and specifically, the article will
examine the provisions of the recently enacted Jamaican Defamation Act 2013
which are applicable to defamatory publication via internet and by extension,
social media. 2. FREEDOM OF EXPRESSION AND ITS SIGNIFICANCE

Freedom of expression has long been established and universally recognized to be

one of the most important fundamental right of every individual within every
democratic society. Jamaica, like every Commonwealth Caribbean country, has a
constitution which includes the guarantee of the right to freedom of expression.
The Jamaican Charter of Rights, as included in its Constitution:5 guarantees … the
right to freedom of expression; the right to seek, receive, distribute or
disseminate information, opinions and ideas through any media… Except with his
own consent, no person shall be hindered in the enjoyment of his freedom of
expression, and for the purposes of this section the said freedom includes the
freedom to hold opinions and to receive and impart ideas and information
without interference, and freedom from interference with his correspondence
and other means of communication. These provisions are in line with similar
provisions guaranteeing the same right in a number of international human rights
instruments. Article 19 (2) of the International Covenant on Civil and Political
Rights, 1966 provides: Everyone shall have the right to hold opinions without
interference. Everyone shall have the right to freedom of expression; this right
shall include freedom to seek, receive and impart information and ideas of all
kinds, regardless of frontiers, either orally, in writing or in print, in the form of art,
or through any other media of his choice. Similarly Article 19 of the Universal
Declaration of Human Rights states: Everyone has the right to freedom of opinion
and expression; this right includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through any media and
regardless of frontiers. The 1978 American Convention on Human Rights also
provides: Everyone has the right to freedom of thought and expression. This right
includes freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the form of art, or
through any other medium of one's choice.6 Very similarly, Article 10 of European
Convention on Human Rights provides that: Everyone has the right to freedom of
expression. This right shall include freedom to hold opinions and to receive and
impart information and ideas without interference by public authority and
regardless of frontiers. From these various international human rights
instruments, the importance of freedom of expression is clear. The provisions also
disclose that the right to freedom of expression not only involves the sharing and
imparting information or ideas, but also includes the right to seek and receive
information. There is a plethora of legal treatise on the importance of this
constitutionally guaranteed right to freedom of expression. The exercise of this
right has been agreed to be integral to, and the central of any democratic society.
Alexander Meiklejohn, free-speech advocate in the USA, expressed that
“democracy” means self-government by an informed electorate.7 He explained
that in order for them to be so informed and for democracy to function effectively
the information and ideas should be allowed to flow freely without constraints.8
The importance of this right to freedom of expression was also elaborated on by
Lord Steyn in the UK House of Lord’s case of R v. Home secretary ex. p Simms.9
According to him, free expression: “Firstly... promotes the self fulfilment of
individuals in society. Secondly...the best test of truth is the power of the thought
to get itself accepted in the competition of the market... Thirdly, freedom of
speech is the lifeblood of democracy. The free flow of information and ideas
informs political debate. It is a safety valve: people are more ready to accept
decisions that go against them if they can in principle seek to influence them. It
acts as a brake on the abuse of power by public officials. It facilitates the exposure
of errors in the governance and administration of justice of the country.”10 The
importance of freedom of expression therefore cannot be overstated. Self-
fulfilment, democracy, and good governance depend on it. 3. SOCIAL MEDIA
ADVANCES FREEDOM OF EXPRESSION Traditional mediums of communication,
such as print, television, radio previously were the main outlets for expression
prior to the advent of the Internet and social media. Social media has radically
impacted the manner in which persons are able to express and share ideas,
disseminate information, and interact socially. It is very much an integral part of
the way the Internet is used to communicate in modern society. As the use of
social media increases, traditional media and methods of communications has
been relegated as mediums of choice to exercise one’s freedom of expression. 69
While social media is similar to other traditional mediums of expression and
communication, it is possessed of qualities which make it unique from those
other communication platforms. Social media is a platform comprising of “a group
of internet-based applications ... that allow the creation and exchange of user-
generated content.”11 It is the convergence of the technology, applications,
qualities and capabilities of the traditional telecommunications mediums.12 It is
this convergence that makes social media unique. 3.1

AFFORDABLE ACCESS Social media as a platform for greater exercise of freedom

of expression is facilitated by the low, and in some instances, no cost to access to
the Internet.13 According to the International Telecommunications Union reports
as at 2013 there were over 2.7 billion people using the Internet. This amounts to
just below 40% of the population of the world.14 The report indicates that 41
percent of households have internet connectivity and 78 percent of these
connected households are in the developed world.15 With social media, the
average Jane is able to communicate opinions and ideas and to an even greater
audience via social media than traditional telecommunication mediums. It has
therefore become common place for persons across the world to access and
share content with ease and instantaneously via social media. This capability was
once restricted to those publishers who had the financial resources to do so. No
longer is expression, whether journalistic, literary or otherwise, restricted to
those who are trained formally in journalism or to those who work within
mainstream traditional media or in publishing houses. Now this access is available
to a wider number of social media users with or without any special skill or
training and thereby facilitates 2 “THERE’S AN APP FOR THAT!” Another
characteristic which contribute to social media being a platform which advances
the exercise of one’s freedom of speech is the number and accessibility to a
variety of internet applications. These applications16 were especially invented to
allow users to be able to create and exchange their own content via social media,
generally at no cost. Content of various formats may be created, shared and
received by the social media user via electronic mail, by establishing their own
webpage or website, through chat rooms or forums, blogs and vlogs.17 3.3 MORE
GIVE AND TAKE It is clear from the constitutional provisions as well as the
international human rights instruments, that part and parcel of the enjoyment of
this constitutionally guaranteed right to freedom of expression is not only the
sharing of information but also the ability to access and receive information.
Richard Moon, describing the value of expression, explained that “through
communicating with others an individual gives shape to his or her ideas and
aspirations, [and] becomes capable of reflection and evaluation, and gains greater
understanding of her/himself and the world.”18 It is also against this background
it can be asserted that social media is a platform which advances exercise of one’s
fundamental right to freedom of speech. The social media user is able to upload
and share information easily and quickly, they can also receive content from
sources worldwide with ease and speed. These unique nature and characteristics
of social media allow and facilitate communication with others and the sharing
and shaping of ideas. 3.4 AFFORDABLE TECHNOLOGY Contributing to the large
scale use of social media as a platform for exercising ones right of freedom of
expression is the wide scale availability of inexpensive handheld internet
accessible mobile devices. These make it possible to access and share social
media content easier and faster. 16 Among the most popular social media
applications and websites are Facebook, Twitter, Instagram, LinkedIn, and
YouTube... 71 Innovations such as the tablet, the iPod, the mobile telephone, the
television and more recently the phablet increasing come pre-formatted with
Internet accessibility, and social media applications. Consequently, as quickly as a
thought or an idea comes to mind, the social media user is able to use his mobile
internet accessible device to share those thoughts publicly. Statistics show that
189 million social media users in the United Kingdom utilise handheld devices to
access the social website, Facebook as opposed to through the use of a laptop or
desktop computer.19 Therefore the previously limiting barriers of inability to
afford to purchase a desktop computer or laptop to access the internet and social
media have been lessened or removed. It is now affordable to the average man
and as such a wider cross section of the global population are able to access the
internet and to interact via social media. 3.5 TIME AND SPACE Another significant
characteristic of social media which serves to advance the ability to exercise ones
freedom of expression right, is that its users are un-tethered by time and place.
Wherever the user is located in the world, participants via social media may able
to access or share information and at any time of the day convenient to them.
They are also able to share information to large audiences from various corners of
the globe, without the previously limiting factors of geographic distances and
borders, or time of day. Social media is trans-jurisdictional in nature. 3.6 THE NEW
LIVING ROOM: WHAT AND HOW DO THEY COMMUNICATE? The unique nature
and characteristics of social media also create a sense of comfort which is similar
to being in one’s own living room, but in a cyber world. The users feel
comfortable in engaging in casual expressions. Expressions by its users via social
media are often off the cuff, spontaneous, and at times very emotive. Regard for
grammar and spelling is not the focus of the sharing. Additionally, social media is
used to vent their frustrations as well as to partake in and share the latest gossip.
Reliable and unreliable information is shared with equal exuberance. Speech is
unfiltered. Social media users may engage in measured and well thought-out
discourse in cyberspace. Social media users may also use this additional platform
to scrutinize and comment on governance by public officials. This relaxed
approached to publication of content via social media user in part is further
caused by the users’ ability to receive and share information and ideas
anonymously. Users may also opt to communicate using a pseudonym. By so
doing, social media has created a cloak which results in social media users being
less hesitant to share content which is controversial, unpopular or defamatory.
3.7 FREEDOM OF EXPRESSION - NOT AN ABSOLUTE RIGHT The same legislative
instruments by which freedom of expression is guaranteed also include provisions
which prescribe the limits to this exercise of freedom of expression and for the
protection of other rights. One right against which freedom of expression must be
balanced is that of reputation. According the Jamaican constitution: “Nothing
contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this section to the extent that the law in
question makes provision - (a) which is reasonably required ... for the purpose of
protecting the reputation …” Similarly, the other international instruments
include provisions which express the same limitation to the exercise of freedom
of expression.. For example, Article 17 of the International Covenant of Civil and
Political Rights provides that: 1. No one shall be subject to...unlawful attacks on
his honour and reputation. 2. Everyone has a right to the protection of the law
against such interference or attacks. Additionally, according to Article 19(3)
restrictions are imposed on the exercise of freedom of expression on the
following grounds: (a) For respect of the rights of reputations of others (b) For
protection of national security, or public order, or public health or morals.20
What is clear from these provisions is that the right to freedom of expression is a
restricted qualified one. Freedom of expression is not absolute.21 It must be
exercised without violating or infringing certain other protected rights and
interests. In the Canadian Supreme Court case of Hill v Church of Scientology of
Toronto (1995)22 Cory J explained that: “…The publication of defamatory
comments constitutes an invasion of the individual’s personal privacy and is an
affront to that person’s dignity. The protection of a person’s reputation is indeed
worthy of protection in our democratic society and must be carefully balanced
against the equally important right of freedom of expression.”23 4. SOCIAL MEDIA
– A CYBER TRAP DOOR TO MULTIJURISDICTIONAL DEFAMATION? While the
nature and characteristics of social media empowers users to engage in free
expression easily, cheaply, quickly and to a wider audience, with great power
comes great responsibility. Flowing alongside the benefits of social media as a
platform for freedom of expression is the responsibility to exercise this
fundamental right within the limits prescribed by law. However the manner in
which social media is being used however suggests that its users are either
unaware or do not appreciate that, even in this cyberspace environment, freedom
of expression must be exercised within the parameters prescribed by law. Some
commentators have likened the use of social media to the ‘Wild Wild West’, free
from rules which regulate discourse in the non-cyber world.24 The ability to
express oneself without disclosing one’s identity, whether by posting content
anonymously or 20 Article 10 of the European Convention on Human Rights also
provides. “...the exercise of these freedoms, since it carries with it duties and
responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, ...
for the protection of the reputation or rights of others...” The American
Convention on Human Rights states that...”the exercise of the right provided for
in the foregoing paragraph ... shall be subject to subsequent imposition of liability,
which shall be expressly established by law to the extent necessary to ensure...
respect for the rights or reputations of others...”. 21 under a fictitious name, also
contributes to a sense of being untouchable and uncensored, and unaccountable
for expressions made via social media. Social media is about sharing information
with, and receiving information from others, and therefore there has been and
continue to be occasions where that information shared is defamatory of another
person. Any expression to a third party of content which may tend to “lower
someone in the “estimation of right thinking members of society generally’ or
‘expose him to hatred, contempt or ridicule or to injure his reputation in his
office, trade or profession or financial credit”25 will be considered defamatory
and may give the aggrieved party a right to bring a claim for defamation against
the author of the statement and or anyone involved in the dissemination of the
defamatory communication.26 It is the cyber nature of social media which also
encourages and facilitates users to take a casual approach to expression, and
sharing receiving large amounts of content without a sense of unrestraint. The
ease with which a user may re-publish a statement by sharing and re-tweeting,
broadcasting is equally easy to do. Within a short period of time content shared
via social media may become viral. Consequently, reputation may be harmed with
minimal effort via the social media. It is not difficult therefore for a social media
user to become a defendant in a claim of defamation. Users of social media may
find themselves faced with claims of defamation in relation to statements made
in jest, spontaneously with little thought or intent to defame or even
anonymously. Given its global reach the potential for harm in relation to
defamatory information being published on social media is even greater. The
same characteristics of the social media platform which enhance the value of and
promote freedom of expression cause social media users to be exposed to a
heightened risk that their expressions may cause them to end up defendants to a
various actions for their defamatory publications in various different jurisdictions.
It is as though the social media has a cyber-trap door and users who choose to
dance close to this trap door, without due caution, are at an increased risk of
falling through by infringing other persons’ rights .75 Further, there is no
harmonized and internationally agreed law governing the tort of defamation
globally. Words and images may have different meanings for different people in
different cultures. What is considered acceptable and permissible expression
under the laws of one jurisdiction may be considered defamatory and offensive in
another. By which laws would an expression via social media be assessed to
determine whether it is defamatory? What would be the applicable law which is
applied? In the Australian High Court case of Dow Jones & Company Inc v
Gutnick27 defamatory content was uploaded onto a website from USA. This
content was accessed and was downloaded in Australia. The defamed, Gutnick,
brought an action against the Dow Jones in an Australian court. The court had to
decide in which jurisdiction the publication of defamatory content occurred in
order to determine the appropriate jurisdiction in which a defamation action may
be initiated by Gutnick. The Court held that the place of publication of was where
the defamatory content was accessed and Gutnik’s reputation was attacked. The
matter was able to be adjudicated in Australia and according to the law of the
jurisdiction. An important point which may be gleaned from this case is that social
media users may be faced with the possibility of claims being initiated in many or
any jurisdiction where the defamed person has a reputation and the defamatory
matter published via social media has been accessed. Users of the social media
platform therefore may find their expressions being subject to a variety of
nations’ standard of defamation laws, some of which may ascribe criminal liability
for publication of defamatory content. As a consequence this causes uncertainty
in being able to determine by which law the expressions will be eventually
adjudged, the limitation period for claims to be brought in relation to the
publication of defamatory content via social media and the likely penalty. Users of
social media may also be unaware of who may legitimately bring a claim, what
defences are available in jurisdiction other than that of the author or re-publisher
of the expression. While there may be defences which bear the same name, they
may be required to be established in a different manner. Similarly, uncertainty
may arise as to how damages will be assessed from jurisdiction to jurisdiction or
will different factors be taken into consideration1 who is charged with the task of
assessing culpability or determine the quantum of damages during a trial? Social
media users may also take heed that they may be found to have published
defamatory content where they simply republish links to defamatory publications
and encourage others to access the publication, rebroadcasts or ‘retweets’ the
defamatory matter. Under the strict liability common law rule, any person, who,
by their voluntary conduct played a role in the dissemination of the defamatory
matter to a third party may be also culpable for such publication. Therefore, in
the event that the social media user creates, shares and reposts, or forwards
defamatory content, he will be strictly liable for its publication. The social media
users will therefore need to be cautious and slow to republish content received
via social media, including hyperlinks which links to site that might contain
defamatory imputations concerning the aggrieved. Authors of a defamatory
content which is subsequently shared by other social media users need to be also
concerned with the extent to which they may be found liable for any increased
harm caused by virtue of that content being re-shared and re-tweeted or re-
broadcasted by other users. The social media is further exposed where the
defamatory content posted on the Internet to be archived by the host and as such
is capable of being accessible multiple times, and even years after the initial
publication. The question to be answered is what is the period within which an
action may be brought against the social media publisher of these defamatory
contents in archives? Will they be liable for any multiple publications? 5. SOCIAL
MEDIA AND THE NEW DEFAMATION ACT OF JAMAICA 2013 An examination of the
recently enacted Defamation Act 2013 discloses a number of provisions which
may be of direct relevance to publication of defamatory content on social media
as its users use it as a viable platform for the exercise of freedom of expression. It
answers some of the issues raised by the global trans-jurisdictional nature of
social media. Some provisions may provide “comfort” to social media users, while
others may cause them concern. Some may serve to ameliorate the extent to
which cross and multi-jurisdictional claims may arise from the publication of
defamatory content via social media. 2015] C. Lewis: Social Media - Cyber Trap
Door to Defamation ... 77 Firstly, social media users should be pleased to know
that the new legislation has abolished all forms of criminal defamation.28
Consequently, social media users are able to exercise their constitutional right to
freedom of expression without the fear of attracting liability for criminal libel in
Jamaica. Section 8 of the Act will also assist in providing some relief to the social
media user. It provides that an aggrieved person will only have a single cause of
action in relation to a single defamatory statement irrespective of the number of
defamatory allegations published within that defamatory statement. This is
known as the Single Publication rule. It is also of particular significance for those
occasions where an author’s defamatory statement is “re-tweeted”, shared, re-
broadcasted or forwarded to others by other social media users. This will serve to
restrict the number of actions brought against the author of the defamatory
material in relation to these multiple re-publications which are easily made by
other users via the social media. The Single Publication rule must also be read
within the context of the new limitation period for bringing an action under the
new Act. The limitation period for instituting an action for defamation has been
reduced from 6 years from the date of publication to within 2 years from the date
upon which the defamatory statement was first published on the internet, or the
date upon which it was first capable of being viewed or listened to through the
internet whichever is later.29 With the possibility of republication more a reality
in the case of social media content, the user would be relieved that limitation
period runs from the first publication and not each subsequent re-publication. As
was the case pre- amendment of the Act however, the court retains the discretion
to extend the limitation period. Furthermore the Act provides that, except with
the Court’s leave, where an aggrieved claimant has already brought an action
elsewhere, for example, in another jurisdiction, in respect of the publication of a
defamatory matter, the claimant is not allowed to bring proceedings for damages
in Jamaica in relation to the same publication. The social media user therefore will
not be faced with an action in Jamaica where one has already been brought
against him in another jurisdiction in relation to the same defamatory
publication.30 Other provisions of the Act which the social media user may find
improve the extent of culpability which may arise as a result of the publication of
defamatory comments which is globally accessible social media are those which
address the issues of responsibility for the determination of liability and the
assessment of the quantum of damages during a trial where the defendant has
been found liable for defamation. Before the Act, commentators complained that
the damages awarded were not commensurate with the harm suffered by the
Claimant. It was opined that the damages awarded in defamation actions in
Jamaica were excessive in comparison, for example, with the quantum of
damages usually awarded for the loss of a limb. These exorbitant awards were
attributed to the inexperience and lack of legal knowledge by the jury who were
charged with the task of assessing the quantum of damages awarded which was
further compounded by the complexity of the law of defamation and assessment
of damages for legal practitioners and judges. Under s 17(3) of the Act, quantum
of damages will now be assessed exclusively by the judge and the jury will only
have the task of determining liability. Unfortunately an aggrieved may still
“easily” be able to establish a claim in defamation once they can prove the three
elements of publication, defamatory statement about and concerning the
aggrieved to a third party. Reasserting the pre-amendment position, the Act
states that the statement is actionable without the aggrieved having to prove he
even suffered any special damage.31 This is of particular concern to the social
media user as the Act fails to take into consideration that certain statements
published within a particular context and environment is intended “meaningless”
conversation and frivolous comments. Therefore the social media publisher is not
able to use as a defence that the publication via social media is of such
circumstance that the aggrieved is unlikely to suffer any harm.32 This rule may
serve to discourage social media users from expressing their freedom of
expression right via social media in fear that the expressions may not be
interpreted in the manner intended, for example in jest. The harshness of the no
special damage rule may be lessened by the fact that under the new Act the judge
is now exclusively charged with responsibility of determining the quantum of
damages to be awarded where liability was established and therefore may take
into consideration evidence of the lack of special damage. Social media users may
have wished that the legislature had included, in the newly enacted Defamation
Act, the defence of triviality especially in relation to content published via social
media in jest. By this defence the defendant would be excused of liability where
he can show that the aggrieved did not suffer any harm as a consequence of the
publication of the defamatory statement. However, the Joint Select Committee
expressed that triviality of the statement does not go to determining one’s
liability. The triviality of the statement should then be considered in determining
the quantum of damages to be awarded. The large cost and lengthy period of
litigation associated with defending defamation cases was one of the factors
which contributed to the chilling effect on the exercise of the right of freedom of
expression. Social media users may feel less chilled in their expressions knowing
that provision is made within this new legislation for resolving claims of
defamation without having to embark upon costly court proceedings. The social
media user may choose to avoid the lengthy court proceedings by offering to
make amends by publishing a statement correcting the defamatory publication as
well as by apologizing for the defamatory publication.33 Some payment of a sum
as compensation for damage may also be made at this juncture. However in order
to exploit this option, the social media publisher must make the offer of amends
before he serves his defence on the aggrieved claimant.34 Additionally the Act
provides that where one opts to make an offer of amends, correction and or
compensation if that offer is not accepted by the claimant, the claimant may not
use the fact of the offer as evidence of admittance of guilt.35 The offer will
considered to be made without prejudice.36 Therefore should these gestures by
the social media publisher not be accepted, it may not be used by the aggrieved
against the social media publisher as an admission of liability. On the other hand,
the publisher may use the fact that he made an offer to make amends as a plea in
mitigation of damages where the court rules that he has defamed the claimant.37
5.1 DEFENCES Once an aggrieved party establishes a prima facie case of
defamation the social media publisher will then have the task of establishing one
of the defences available which permits him to exercise his right to free
expression via social media in the manner that he did. The defences provided by
the new Defamation Act which may be relied on by the social media user for their
publications online are Truth, Fair Comment, Innocent Dissemination, and
Qualified Privilege, each with its own set of requirements and qualifications.

The defence of Truth was formerly known as Justification. To rely on this defence,
the social media publisher must adduce evidence to establish the accuracy of the
statement. He must show that the substance of the allegedly defamatory matter
is true or not materially different from the truth. 38 The defence will not be
defeated where the matter in question contains aspersions that are not proved to
be true and those untrue aspects do not materially injure the reputation of the
claimant, having regard to those aspects of the material proved to be true.39
Establishing the defence of truth may be a challenge for the social media user
especially where he did not author or create the content but incurred liability as a
republished because he shared, re-tweeted, rebroadcasted or forwarded the
defamatory material. The social media user can also rely on the defence of Fair
Comment where he expresses an opinion based on true facts.40 Again this
defence may be limited in its usefulness to the social media defendant because of
the limitations of the method of disseminating content via social media
applications via social media. If the opinion is based on statements of fact which
are not true or substantially true the defence will fail. For example publications
via Twitter where the publisher is only able to use 140 characters the user is
hardly able to state the relevant facts which are the basis of his opinion. They are
worded more than likely as assertions of facts than opinions. The jury will have to
make the determination if it is one or the other, and whether the social media
defendant may rely on the defence of fair comment. The social media user may
also seek to rely on the defence of Innocent Dissemination.41 This defence is
available to persons who: i. merely acted in the capacity of a subordinate
distributor to the publisher of the matter and/or ii. can show that he did not know
the matter was defamatory and that that lack of knowledge was not due to
negligence on their part. In relation to the first prong of the defence, section 22it
does not expressly describe who is a subordinate distributor. What this does is to
expressly state who will not be considered a subordinate distributor. According to
s22 (4) a subordinate distributor is neither: (a) the first or primary distributor of
the matter, (b) the author or originator of the matter, or (c) one who had some
capacity to exercise editorial control over the content of the matter and the
decision to publish the matter before it was first published. What is clear is that
social media users who are authors or originators of the alleged defamatory
content will not be able to fall within the s22 (1) (a) as a subordinate distributor
who can rely on the defence, unless he is acting in the capacity of an employee.
For the second prong of the defence the social media users, must show that lack
of knowledge of the defamatory publication was not due to negligence within the
context of social media expressions. The Act does not include any provisions
which outline what factors should be used to determine whether the social media
user ought reasonably to have known that the content shared as a subordinate
distributer was defamatory. Consequently, the Act allows the Jamaican courts a
degree of latitude to determine what constitutes reasonableness based on the
facts of each case. The Act also provides the defence of qualified privilege to the
social media user where he can show that the defamatory expression was a fair
and accurate report of parliamentary, judicial proceedings and or decision of a
public authority and those circumstances set out in the First Schedule of the Act
and the report was made without malice. The multi and cross jurisdictional nature
of the social media which allows exercises of expression to be read or viewed
virtually anywhere in the world by others effectively exposes the social media
user to the possibility of claims of defamation being brought against them by
claimants from within as well as outside of Jamaica. The Jamaican Defamation Act
2013 does not include a provision which states that the social media user who
publishes from Jamaica will only be subjected to the defamation rules of Jamaica.
The social media user must therefore be not only concerned with the domestic
defamation laws of Jamaica, but must be aware that their expressions are also
subject to the domestic defamation laws of other countries. 6. CONCLUSION
Social media has been embraced with open arms as a platform which advances
and adds value to the exercise of the fundamental human right of freedom of
expression. Its characteristics of easy, inexpensive and wide scale global
accessibility have contributed to it becoming an integral part of modern day
communications of the social media user. However, the very qualities of social
media which are celebrated may also be good reason for its users to limit, chill,
and temper its use as a platform for the exercise of their fundamental right of
freedom of expression. While social media creates more opportunities to
disseminate and receive information, it also creates an environment which
facilities the making and publication of defamatory content to a larger audience,
across multiple jurisdictions, with greater ease than if publication was made via
traditional means of communication. The fact that various types of content may
be shared instantaneously, anonymously and from anywhere via social media has
given users the false sense of security that they can do so without restraint,
regard for the reputations of others or some degree of self censorship. The result
is that social media users may fall in the trap created by the social media that they
are free to express anything with impunity and then find 42 The list of qualified
occasions is set out in Part I and II of the First Schedule of the Act. 201583
themselves liable for defamatory publications in jurisdictions other than their
own. The newly enacted Defamation Act 2013 of Jamaica has included provisions
which apply to expressions published via social media by its users. However the
global nature of social media means that domestic laws will not provide any relief
where the expression is found to be judged by the law of another country where
the expression was accessed. The social media users may be safer if they are
cautious in how they exercise and exploit their right to freedom of expression via
the social media in order to limit this increased exposure to being sued for
defamation globally