28 April 2021

Influence, and don't be damned

By Alex Wade on behalf of Performance
Woman in front of the camera
We live in a world of instantaneous global communication via a variety of media, from traditional print newspapers and their online incarnations to tweets, Facebook wall updates, Insta posts, TikTok videos and blogs. Everyone, it seems, is a writer.

But the business of writing carries risks. Get it wrong, and a publisher can be sued for millions. And in today’s world, a publisher isn’t just a newspaper or TV station with deep pockets. It could be an individual with a blog or a popular Twitter feed, or an Insta page or TikTok account.

It could be you.

If you want to be an influencer, then it pays to have a working knowledge of the legal risks that go with the territory when you put pen to paper – or rather, when you press the equivalent to ‘publish’ on your device and commit your thoughts, words and images to a digital future.

And before we go on – and I’ll be as 280-character light (or close to) as I can – a top-line word of warning. A lot of people think that anything goes in our brave new world. That images found online can be republished for free. That you can say what you want. That somehow, normal laws don’t apply to that deeply personal, intimate image of Joe behaving badly in his house, that your friends shared on WhatsApp. Why not give it to the world?

Bad call.

The late, great Gary Slapper summed it up well, when he said: “Law is all-pervasive. It exists in every cell of life. It affects everyone virtually all of the time.”

Here are a few things to look out for, whether you’re influencing via Facebook, Instagram, TikTok – in fact, via any media at all.

1. Defamation

There are many definitions of defamation but the most commonly accepted is that a defamatory statement is one that will tend to lower its subject in the estimation of right-thinking members of society generally.

In other words, it will make people think the worse of a person.

Defamation includes libel, which is the publication of material in permanent form (e.g., newspaper reports, online publication such as blogs, Facebook posts, Insta material, etc, but also television broadcasts), and slander, which is the publication of transient material (e.g., spoken words or even gestures).

Not so long ago, libel trials were conducted in front of juries, who were in the habit of making huge awards (e.g. £1m damages for Elton John following a Sun story falsely alleging bulimia) but today damages are generally capped at £250,000. However, the lawyers’ costs – which the losing party has to pay – can be crippling. Think more than £1million for a worst-case scenario.

2. Copyright

Laurence Sterne, in Tristram Shandy, summed up copyright as well as anyone: “The sweat of a man’s brows, and the exudations of a man’s brains, are as much a man’s own property as the breeches upon his backside.”

Copyright is a form of ‘intellectual property’, so called because it is intangible rather than physical. Copyright law protects original, creative work from being copied, without consent, by others. As influencers, copyright law is something you should understand for two reasons: one, so that you don’t infringe other people’s copyright, and two, so that you protect your own.

3. The law of confidence, privacy and data protection

Privacy claims are increasingly seen in British courts, having come to the fore following the passing of the Human Rights Act (HRA) 1998, which came into force on 2 October 2000. The HRA codified provisions of the European Convention on Human Rights (which came into force in 1953), providing for two key rights in media terms: one, the incorporation of Article 10 of the Convention, enshrining the right to freedom of expression, and two, via the incorporation of Article 8, the right to privacy.

Data protection has emerged as a significant tool in restraining the media (don’t forget – that means influencers too), with increased powers to fine those who process personal data.

Not convinced? Just google two people called Meghan and Harry, and add ‘privacy’ and ‘data protection’. Oh, and ‘copyright’ (see above).

Hollywood film star Marlon Brando had it right all along: “Privacy is not something that I’m merely entitled to, it’s an absolute prerequisite.” The courts have caught up, and that means you, as an influencer, need to know about privacy too.

4. Contempt of court and reporting restrictions

Contempt of court is not to be found in the dialogue of Mae West, when on trial accused of indecency:

Judge: “Miss West, are you trying to show contempt for this court?

Mae West: “On the contrary, your Honor, I was doin’ my best to conceal it.”

Instead, contempt of court, both in its statutory and common law forms, exists to ensure the unprejudiced conduct of criminal cases and to protect the judicial process. The principal legislation is the Contempt of Court Act 1981. There is also a raft of other statutes which provide for various restrictions on the coverage of trials, as well as common law contempt.

What does this mean, in practical terms? That you should think very, very carefully before publishing comments on someone who’s been arrested and/or charged, or giving your views on an ongoing criminal trial.

That’s the bad news, but it’s not all gloom. Far from it. The law has tilted towards freedom of expression in many ways, sky-high damages aren’t given out anymore and publishing and broadcasting is now a level playing field.

You just need an idea of the legal landscape around you (which, in the world of influencing, will also include a sense of advertising and trademark laws) – and to know to take five, step back and call a (legal) friend if you’re in doubt.

A good lawyer will find a way to help you say what you want to say.

Lord Devlin’s legal maxim from 1964 still holds good:

A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire: but it can be done.

Alex Wade is a writer and media lawyer with Reviewed and Cleared.