North Side independent political candidate Joey Ebanks may face legal action on several fronts in what could become a Cayman Islands test case for freedom of expression on Facebook.
Mr. Ebanks has been threatened with lawsuits by Cayman Islands Governor Duncan Taylor, his political rival in North Side Ezzard Miller and head of the Judicial and Legal Services Commission Dan Scott over comments made on his Facebook page.
Mr. Ebanks has been a prolific poster on the social media site since his suspension from the Electricity Regulatory Authority last month amid a criminal investigation.
He has pronounced it his mission to stamp out corruption in Cayman and posted a string of accusations against several high-profile figures, promising to continue delivering “beat downs” on his Facebook page.
Governor Taylor confirmed earlier this month that “potentially defamatory postings on Facebook” had been brought to his attention.
He said attorneys for the regulatory authority, also the subject of some of Mr. Ebanks posts, were in consultation with the attorney general over the matter.
Mr. Scott’s lawyers delivered a “cease and desist” letter to Mr. Ebanks over postings on his Facebook page earlier this month, while Mr. Miller has said publicly that he is in discussions with his lawyers over what action to take.
Mr. Miller also filed a complaint with the Information and Communications Technology Authority against radio station VIBE FM in connection with remarks made about him on the Joey Ebanks radio show.
If any of the threatened legal actions make it to court, it could have vast implications for how the general public uses social media here.
Mr. Ebanks’ innocence or guilt in the criminal case or in any libel claims will be for the courts to decide, but it is the broader implications of a potential Facebook defamation case that have sparked interest.
The rise of social media has spawned a series of legal issues worldwide, with posters apparently unaware that they could face court action over off-hand remarks published on their personal Twitter or Facebook pages.
American rocker Courtney Love settled out-of-court for more than $400,000 in 2011 following a Twitter-tirade against a fashion designer.
The case of former New Zealand cricketer Chris Cairns went all the way to High Court in London in March last year where he won £90,000 in damages after allegations on Twitter that he was involved in match-fixing.
Ashley Hurst, a UK media lawyer at the firm Olswang, who was involved in Britain’s first civil action over Facebook posts, said anyone who used social media faced a genuine risk of ending up in court over their status updates. He said the same rules that apply to newspapers over libel and defamation applied to individuals on the Internet.
“You are responsible for what you post and so you must be in a position to prove any allegations you make,” he added.
The Cayman Islands Constitution Order does contain a right to “freedom of expression”, but that is no defence against making false allegations that hurt a person’s reputation.
A spokesperson for the Human Rights Commission said this was a “qualified right”, which means that a public official may interfere with this right, in certain circumstances where it is “lawful, rational, proportionate and procedurally fair to do so”, including for “the purpose of protecting the rights, reputations and freedoms of other persons”.
The legal framework for defamation in the Cayman Islands is similar but not identical to the UK.
There are three potential legal avenues in defamation cases: A claimant can pursue a civil action seeking financial compensation under the Defamation Law (1995 revision); the director for public prosecutions can pursue a criminal libel case through section 171 of the Penal Code (2010 revision); additionally, the Information and Communications Technology Authority Law allows for criminal charges to be brought against persons using the Internet in Cayman to “defraud, abuse, annoy, threaten or harass any other person”.
Even a Facebook “status update” that is only published to “friends” is open to prosecution.
Similarly reposting or retweeting a comment from someone else could land the poster in trouble if a court rules the comment causes “serious harm” to their reputation.
Mr. Hurst added: “If you repeat a statement, the onus is on you to prove that it is true or otherwise defensible to any libel action.”
There are protections available to Facebook posters, including the fair comment defence, but the onus is on the poster to prove the comments are based on fact.
Anonymous posters who defame someone using a pseudonym on an Internet blog can also face legal consequences.
Michael Roberts, founder of online defamation experts Rexxfield, acts as a kind of online bounty hunter, tracking down the people behind the pseudonyms in serious cases of harassment on the Internet.
He said slurs on people’s character should not be dismissed as trivial because they were made in an informal setting like Facebook or Twitter.
Mr. Roberts, who acts as an expert witness in online defamation cases, said people’s careers were built on their reputations and could be destroyed through malicious comments on the Internet.
“A false statement in a newspaper is regional and it’s momentary, something on the Internet can be global, it can be accessible 24/7 and it can stay on there forever.”
Michael Fertik, founder and CEO of Reputation.Com — a business set up to help victims of Internet abuse, said that despite a slew of civil suits the law was ill-equipped to handle defamation in the Internet-age.
He said going through the courts had the potential to magnify the impact of the libel by bringing it to a wider public audience. The company, which has clients all over the world, including in the Cayman Islands, seeks to proactively protect a client’s reputation using technical expertise to effectively bury libelous remarks amid neutral or positive information on the Web.
He said the company’s services were increasingly in demand as people woke up to the implications of a world where everyone was a publisher.
“I think people are just waking up to the question of how something like Facebook, which is supposed to be fun, has an impact on their lives,” he said. “They are waking up to the fact that their employers are there, their extended family is there. Anything you say on there has the potential to go global.”
Many companies in the Cayman Islands have already adopted policies on the use of social media.