Thank you for not retweeting: when defamation is a click away

“Retweets do not equal endorsements” – it’s a peculiar disclaimer on so many Twitter profiles that was meant to imply you do not take ownership of a clumsy retweet. Five years ago, it made Gawker’s list of ‘Terrible Things That Must End in 2013’.

Malta’s twitter-sphere is replete with opportunistic retweets of bookmarked content, but was last week’s libel judgement won by the heirs of the late Daphne Caruana Galizia a stark warning against the dangers of the retweet?

On Thursday, Caruana Galizia’s heirs and her husband’s legal firm’s partner Andrew Borg Cardona won three libel suits against Parliamentary Secretary Aaron Farrugia, who in 2014 reproduced, on Facebook and Twitter, an article published on Labour newspaper Kullhadd – which was subsequently found to be libellous.

Magistrate Francesco Depasquale held that one could still be held accountable for public endorsement of a public comment.

Farrugia was fined €6,000 in three libel suits for sharing an article now deemed libellous by the same court, then condensing its contents into a tweet, and further adding to it a tweet with his own comment, thereby “making the information his own”.

So, is the retweet of content that can be – several years down the line – found to be untrue or defamatory, also a potentially defamatory gesture?

Indeed, the case resembles that of British Conservative Party MP Ben Bradley, who tweeted that Labour leader Jeremy Corbyn had sold secrets to communist spies – a move that cost Bradley a substantial sum despite the fact that the same statement appeared in front-page headlines the day before.

In rewording, summarising, or adding onto, a libellous statement, one can no longer use the defence of the ‘repetition rule’, which is otherwise widely used in British defamation law.

So compulsive tweeters are treading through a minefield. Say a story is stretched over a number of weeks, as it gets followed up by the same paper. No right of reply is sent to contradict the content, further leading the public to assume that the story is true. How can social media users verify what they
are about to share?

In delivering his judgement, Magistrate Depasquale said that it would be “surreal” to sue someone for libel for a retweet, such is the technological ease of simply retweeting content that is published freely on Twitter. If the accused merely shared the article, it would appear an action for libel would not stand in court.

But in rewording the contents of the libellous contents, and adding his own comment into the tweet that accompanied his retweet, Farrugia effectively “made the tweet his own”, rendering him guilty of producing a libellous statement. And in this case, a right of reply eventually came, weeks later. But Farrugia’s own fair effort to tweet out that reply, was not considered.

It’s a timely reminder that beyond the innocent sharing of content, the actual rewording or addition of comment – even if originating from that same newspaper article or something in the public domain and widely discussed in public – can be held liable for defamation.

So it would seem the vast majority of social media users can easily open themselves up to libel, even though plaintiffs tend to sue influencers whose comments carry more weight.

But is society even prepared to take responsibility for every bit of news that gets commented on unwittingly, for the off-chance that it might be “fake” or “defamatory” – with the implications this might have on journalism and social media in the future?

This concern was emphasised by the quote from Italian novelist and semiologist Umberto Eco, which the Court thought appropriate to reference in delivering its judgement on Thursday. “Social media now accords freedom of speech to a legion of imbeciles who would otherwise be limited to expressing their opinions after a glass of wine at the bar, without causing damage to the wider community. Whereas they would formerly have been silenced immediately, now they enjoy the same platforms afforded to Nobel Laureates. It is an invasion of imbeciles.”

Social media users have always been tantamount to be hauled into court for defamation, threats and similar misuse of technology. In 2012, the UK’s then director of public prosecutions warned that “grossly offensive” tweets could make one liable for prosecution under the Communications Act.

Keir Starmer added that adding a disclaimer in one’s Twitter bio… the ubiquitous “retweets are not endorsements” does not even provide any real legal protection. And Malta’s own Press Act is also based on the British one, so Starmer’s warning is not to be dismissed: sharing irresponsibly on social media or deliberately malicious statements can carry serious legal consequences.