Key considerations for charities: social media and adverse publications

False allegations made online or on social media can have a serious impact on charities, who heavily rely on the public’s generosity for donations. Sadly, a charity’s reputation, which may have taken years to build up, and that is often created from a personal and sentimental experience, can be irreversibly damaged in moments by adverse online or social media activity.

A false and malicious statement can damage a charity’s reputation, or that of their employees or investors indirectly, resulting in a lack of public trust and consequently, a decline in much relied upon donations. Additionally, it may cause difficulty in recruiting volunteers or charity trustees, both of which are factors that challenge the charity’s ability to fulfil their charitable objectives.

Defamatory statements aimed at charities often include, but are not limited to: (1) false accusations of mismanagement or fraud; (2) false statements about the charity’s activities or beneficiaries; or (3) malicious statements regarding the charity’s trustees or employees.

How can a charity avoid adverse publications made online and on social media?

Given the potential damage both making and being subject to a defamatory statement can do, charities should consider the following to prevent defamation and adverse publications:

• Regular monitoring of the charity’s brand reputation online and in the media, through media tracking, social media listening and stakeholder feedback. This would help identify potential issues early and allows for timely corrective actions, thereby sustaining the charities positive public image
• Responding promptly and professionally to negative comments, with a view to resolving matters amicably between the parties confidentially and out of the public eye
• Implementing robust social media and public relations policies
• Maintaining transparent operations and clear communications with the charities stakeholders
• Training the charity’s staff and trustees on defamation risks and suitable communication best practices.

Can a charity bring a defamation claim?

Yes, it is not just individuals or companies who can bring a defamation claim. Charities are protected under the Defamation Act 2013 (DA 2013).

The term “defamation” covers two types of defamatory actions: (1) libel; and (2) slander. Both concern the publication of defamatory material that adversely affects the victim’s reputation in the eyes of right thinking members of society.

It is important to note that an incorporated charity that does not trade for profit would only need to prove that the defamatory statement has caused or is likely to cause serious harm to their reputation under section 1(1) of the DA 2013, and not serious financial loss as per section 1(2) of the DA 2013 (which companies need to prove both).

Can a charity bring a claim over defamatory publications made on social media?

Yes, libel covers all written publications and slander covers all spoken publications, wherever they are published, provided they have caused or are likely to cause serious harm to a charities reputation.

Although social media is often less permanent than other forms of publication, as posts and comments can be deleted and removed, defamatory words or pictures / videos published on social media platforms such as, Facebook, X (formerly Twitter), Instagram, TikTok, YouTube, LinkedIn, etc can be just as detrimental to a charities reputation as words or pictures / videos published in a newspaper, or circulated via email or text message.

What to do if a defamatory publication is made against a charity?

It is important for a charity to act quickly when a defamatory publication has been, or is about to be, published.

Obtaining an injunction to prevent a publication can be difficult, because of the long-established English law rule against prior restraint. However, it may be possible to prevent the publisher from going ahead with publication by securing an injunction in certain circumstances, or to send a cease and desist letter that may dissuade the publisher from publishing, or if they have already published, for them to remove the defamatory publication.

Courts rarely grant interim injunctions to restrain the publication of defamatory material pending trial, so a charity must be prepared to limit the damage done to their reputation once it has been published.

Before taking legal action, the Charity Commission expects the trustees of a charity to consider, in light of legal advice, whether bringing a claim is in the best interests of the charity. The trustees should consider the publicity and amount of money and time that bringing a claim will require, as well as whether alternatives to litigation may be better suited to resolve matters.

Beyond taking legal advice, there are a number of practical steps a charity should take:

• They should document all instances of the defamatory publication(s) and assess the potential harm to the charity’s reputation and finances to produce a detailed record
• They should also consider requesting a retraction or correction from the publisher. Where the identity of the publisher cannot be uncovered, as may often be the case on social media, the charity should consider approaching the website provider and filing a notice of complaint. This requires the website / platform provider to make contact with the publisher with a view to providing the charity with their details, or for them to remove the post.

What steps does a charity need to take to commence a claim for defamation?

If a charity decides to bring a claim for defamation, they must do so within one year of the false allegation being published, with the clock starting to tick the day after publication. Therefore, charities should take legal advice as soon as possible to avoid the possibility of any potential claim being time-barred.

A charity who wishes to bring a claim for defamation is required to first comply with the Pre-Action Protocol for Media and Communications Claims (the Pre-Action Protocol), which is contained within the Civil Procedure Rules. The Pre-Action Protocol provides specific processes and procedures, which must be followed in order for the parties to prospective litigation to narrow the issues in dispute and to see if matters can be resolved through some form of Alternative Dispute Resolution before Court proceedings are issued.

There is no rule that stops a claim being issued even where the Pre-Action Protocol has not been followed. However, if a party fails to comply with the processes and procedures prescribed by the Pre-Action Protocol, they run the risk of being penalised by the Court and the possibility of facing adverse cost consequences.

Where a charity has been subject to false allegations, they must establish three elements in a defamation claim:

1. The false statement must have been communicated to a third party – This can be through articles, social media posts or comments, conversations, or even pictures / gestures through which people can infer meaning.
2. The statement must lower people’s view of the charity – This is often the case where the false statement suggests improper conduct or targets the charity’s activities, management or people in a negative way, thereby reducing people’s opinion of the charity.
3. The statement must cause, or be likely to cause, serious harm to the charity’s reputation – As mentioned above, a charity does not need to prove that it has suffered, or is likely to suffer, serious financial loss. Although, in practice, it will often be useful for a charity to show the drop in donations or loss of grants, etc as evidence of financial loss.

What remedies are available to charities in defamations claims?

There are a number of remedies available for defamation, including an injunction to restrain the publisher from further publication of the defamatory material and/or the Court may order the perpetrator to remove the defamatory publication.

Statements that are of a very serious and inflammatory nature that continue to be published, or are likely to be repeated can require temporary and even permanent injunctions to remedy. In these cases, the matter can also be looked at from the perspective of harassment.

A charity may also be able to claim general damages in compensation for any distress and damage that the defamatory publication has caused.

If successful at trial, the Court may order the Defendant to publish a summary of the judgment to the public, which is considered as a means of setting the record straight.

If you have any questions on the above, please do get in touch with Rico Dexiades at rico.dexiades@ts-p.co.uk.