Defamation and Social Media
An essay on an ongoing debate that will shape the world to come
"Love all the children: Disarming our hearts after the shootings at Sandy Hook School" by AFSC Photos is licensed under CC BY-NC-ND 2.0.
“Information wants to be free” - Stewart Brand
If you aren’t a journalist, you might not realise quite how seriously most mainstream media organisations take defamation. Over the course of my career as a financial journalist with international publications, spanning nearly three decades, I have attended regular in-house mandatory courses on media law. Editors are meant act as the first line of defence in discussing whether articles are defensible in court; while publications also employ lawyers to provide counsel on some of the trickier issues.
In the internet age, when online publications can be read anywhere in the world, it is important for journalists to understand the toughest media laws in the world. This is often, but not always, English law. Traditionally, English law has defined defamation as a form of communication that injures someone’s reputation in an way that cannot be justified in court. The law has traditionally distinguished between two different kinds of defamatory statements: slander (oral speech) and libel (printed and published communications).
The actual details of the law can get fairly complex, as well as changing over time, but this distinction between the spoken word and written communications is enough background for this week’s essay, which will look at defamation and social media. If you want to dig deeper into the details of the law, please consult a lawyer who has handled defamation cases.
As a rule of thumb, if you want to badmouth somebody, libel tends to be more dangerous than slander, largely because it is easier for the person who is being defamed to find out about published speech than it is about a private conversation and then initiate a lawsuit. So, if you and a couple of mates say horrible things about a third party down the pub, the risks of ending up in court are fairly minimal, assuming everyone trusts everyone else and nobody happens to be eavesdropping on your conversation. On the other hand, though, if you publish something defamatory on the front page of a newspaper, it should be obvious that the risks of legal unpleasantness will be much higher.
When social media exploded onto the scene in the early years of the 21st century, it muddied the waters by effectively publishing private conversations. The Silicon Valley entrepreneurs that led the trend rarely encouraged any discussion of the legal consequences of publishing your unfiltered thoughts on the internet. Did your favourite platform ever invite you to a training course on libel or warn you about the risks of defamation? I thought not!
The implicit implication of this hands-off approach to defamation was that social media would be treated as being similar to discrete slander, with a generally low risk profile. In fact, though, publishing your thoughts on the internet can put ordinary people and entrepreneurs with online businesses at serious risk of libel proceedings. It is also worth mentioning that in parallel to these developments social media also smashed the business models of newspapers, which were set up both as institutions and as businesses; as well as making life hard for gatekeepers in general.
The blurred boundaries have led to some incredibly misguided judgement calls by the new hard right, which is very interested in an online culture war and much less interested in connecting its emotionally charged views to cold, hard reality. In 2023, a judge ruled that Fox News had defamed Dominion Voting Systems by claiming incorrectly that the 2020 Presidential election in the United States (US) had been fixed. The news service was liable for a staggering $787.5m.
Meanwhile, another court ruled that conspiracy entrepreneur Alex Jones had defamed the relatives of school children who were murdered by a mass shooter at Sandy Hook Elementary School. He had repeatedly claimed that the victims were actors and news about the shooting was fictional. He is liable for $1.1bn and is now bankrupt. Satire site The Onion is trying to buy his intentionality-bias website Infowars.
The distinction between slander and libel helps provide context to understand one of the most interesting debates in the contemporary world. In one corner, we have the owners of many social-media platforms, which lobby against being seen as publishers, alongside the new hard right and entrepreneurs with internet-first business models and some hackers and the like, as well as conspiracy theorists like Jones. They want online speech to be seen as roughly equivalent to slander, with few risks for defaming others or for getting facts wrong.
Consider Elon Musk, who famously described himself as a “free-speech absolutist” when he was buying Twitter and turning it into X. His dad, Errol, recently said that British people who disagree with the entrepreneur should realise that he is “just a person,” who can be safely ignored. Of course, the entrepreneur has 213m followers on X (nearly four times as many as The New York Times); has fixed the algorithms to prioritise his own content; and spent a quarter of a billion dollars getting Donald Trump elected in the US. This is all fairly unprecedented, to put it mildly. The comments from Musk Senior echo complaints from podcaster Joe Rogan that he is “just a guy.” He has nearly 18m subscribers on Spotify, making him a major voice in the contemporary media landscape.
Musk could have earned an important lesson in libel in 2019. Vernon Unsworth, a British cave explorer, had described the entrepreneur’s attempt to build a bespoke submarine to rescue Thai boys trapped in a cave as a “publicity stunt.” Trump responded by calling the explorer a “pedo guy.” The entrepreneur ended up in court for defamation, but hired very expensive lawyers, who said the term stood for “creepy old man” instead of being an accusation of paedophilia. Musk won the case, but missed the opportunity to learn something important about the risks of defamation by publishing unfiltered and unmoderated thoughts in the social-media age.
In the other corner, we have European regulators, who want owners of social-media platforms to take the systemic risks of misinformation and disinformation seriously, as well as social progressives, who are worried about online hate speech, plus parents who are pushing for more regulation of social media for children. Employees of the media, who appreciate the value of fact-checking, are often on this side of the debate. People in this corner want material on social media to be seen as roughly equivalent to the published word in the pre-internet world. Gatekeepers (including moderators) and fact-checking tools are seen as a necessary evil.
I believe there could be a middle point between the two positions, at least in theory. The centre of gravity on social media is moving slowly away from the written word and towards podcasts and videos, as shown by Rogan’s successful career. In this context, some speech could be seen as being closer to slander in discrete circumstances, at least some of the time, while the risks gradually increase with the number of subscribers and users who see the material. The most-followed voices should be the most careful, with viral communications acting as a wild card. At the same time, the platforms could provide much more educational material to ordinary users to explain and manage the risks.
Advertisers, who don’t want to see their brands associated with hate speech, will probably act as the judges in the debate. It is worth mentioning that Bluesky’s model, which is based on letting users choose their level of content moderation, as well as their algorithmic settings, looks like a winner to me, even if its user base is still much lower than those of more established platforms.
There is also another related debate, with some crossover. In one corner, we have many members of the Silicon Valley hard right, conspiracy theorists of all stripes and anti-authoritarians, including many hard-left progressives. They are worried about state actors keeping information secret and as a result often spread narratives about the so-called “deep state.” Unwavering support for Julian Assage of Wikileaks is common in this camp.
In the other corner, we have many people who I have called institutionalists. This refers to people across the centre left, centre and centre right who support the institutions of liberal democracy, which evolved to keep ordinary people safe from our elected leaders. Those in this camp are concerned that Wikileaks’ radical transparency can endanger the population by making the identities of informants and spies public. Some secrecy is probably always going to be necessary some of the time in the fight against terrorism.
Of course, conspiracy theorists, like Jones of Infowars, have their doubts about whether Islamist terrorism is real. They tend to think that the “deep state” is behind many attacks for its own nefarious reasons. If you subscribe to this strange worldview, any state secrets are questionable by definition.
Whoever wins the two related debates in the years ahead, it is clear that social media will change society in multiple unexpected ways, just as the printing revolution made the Renaissance and the Reformation possible, with European wars of religion following the schism within Christianity. The comments are open. I hope to see you next week!
Previously on Sharpen Your Axe
The hard right and the culture war (part one and part two)
The conspiracy mindset and intentionality bias
Musk (part one, part two and part three)
Further Reading
Ubik by Philip K. Dick
This essay is released with a CC BY-NY-ND license. Please link to sharpenyouraxe.substack.com if you re-use this material.
Sharpen Your Axe is a project to develop a community who want to think critically about the media, conspiracy theories and current affairs without getting conned by gurus selling fringe views. Please subscribe to get this content in your inbox every week. Shares on social media are appreciated!
If this is the first post you have seen, I recommend starting with the fourth-anniversary post. You can also find an ultra-cheap Kindle book here. If you want to read the book on your phone, tablet or computer, you can download the Kindle software for Android, Apple or Windows for free.
Opinions expressed on Substack and Substack Notes, as well as on Bluesky and Mastodon are those of Rupert Cocke as an individual and do not reflect the opinions or views of the organization where he works or its subsidiaries.
Excellent and timely analysis. With lies becoming the main currency of today's alt-right media ecosystem, there is a growing need for courts to facilitate libel claims and to accelerate enforcement action.