Abigail Rieley

Writer and Author

To Defame or Not to Defame

On Monday Justice Minister Dermot Ahern announced that comments posted on social networking sites could be defamatory.  The papers the following day were full of headlines that warned users of Facebook and Twitter to be careful what they said because they could now be guilty of libel.

This is all fine and dandy but for one thing. They always could be.  Libel covers any defamatory material that is written, printed or otherwise permanently represented. Surely any first year journalism student could work out that just as letters, emails, blogs or graffiti can be defamatory so can tweets or Facebook updates.

We should all be aware that what we write online is no different from something written in a newspaper or set down permanently in any other way.  I have to be aware that anything I write online about the trials I cover is not going to land me in contempt of court just as I have to be careful with any copy I write for newspapers, magazines or books.  Defamation is no different.

I understand that there are millions of people now writing stuff online who have not been taught a basic primer in defamation law that the average journalist receives in college but surely most people have a rough idea of what libel is?

The minister’s comments at the second annual report of the Press Ombudsman on Monday evening were indicative of a widespread assumption that online words somehow exist in a special alternative reality that needs special laws and special rules.  The defamation laws are not suddenly applying to stuff that has been blissfully unregulated since it came into being, they always did.  If online material is permanent then surely it is covered by the standard libel definition, just as letters to a third party have always been, just as graffiti has always been and just as blogs and emails are and have been proved to be in recent cases here in Ireland.

Yes the spectacular growth of social networking has given a lot of new ways to libel people but it beats me why this should come as a shock to anyone.  The idea that online communities are in some way private, or at least give that impression, is often bandied around as as reason for why people are so cavalier about basic common sense online but this doesn’t really wash.  You can commit libel in a letter to your mum…if you’re talking about a third party and the letter is put lovingly away in a box.  It’s the making of defamatory comments to a third party that breaks the law.  That could be over the counter in your local shop (talking the old offence of slander), over a pint in your local pub or standing with semaphore flags on your roof. 

We should all be familiar with the basic idea of defamation.  Now we all spend so much time writing down our defamatory thoughts, rather than cheerfully slandering people with gay abandon, we all need to be more aware of libel.

It’s something that internet forums have long needed to deal with, as has anyone who has to monitor comments on a website or blog and it’s not something that only journalists need to understand.

I remember being taught media law in college.  Our lecturer came from the assumption that there was a lot we would already know.  When did people stop assuming that? When did people start thinking that new rules applied?  There are a lot of things that do need to be looked at afresh in light of modern technological changes, things that will have to be decided in the courts at some stage because they’ve never existed before.  Defamation isn’t one of them.

Maybe it’s about time that social media sites or blogging platforms started to give people signing up a primer on the legal issues they’ll be facing.  It could be something you had to work through before you could finish signing up…like reading the Terms and Conditions always is. 

Commentators are fond of saying that we’re all journalists now.  No we’re not, but we will all need to learn how not to defame people.  It’s something we should all already know.  It’s hardly rocket science.  The penny is going to have to drop sometime that social networks are not some magic special case where the normal rules do not apply.  It’s common sense.  It shouldn’t be such a big shock that it makes headlines.

12 Comments

  1. Great post, good summary. Two observations: one is that I think the average person using the net is actually pretty clueless about defamation and never considers for a nanosecond that what they posted on Twitter, Facebook, their blog or Boards.ie could get them into court. On the other hand (second observation) — in general, there are not that many cases despite plenty of possible defamation instances probably because of 1) cost to bring a case and 2) there is actually some case law indications that judges do indeed view the internet as being somewhat different than say a newspaper because people post ‘in the heat of the moment’ with less forethought and no editing, and the format is also more argumentative. A case last year in the UK dismissed a defamation case based on a discussion board post on this basis.

  2. Karlin is right. Great post )

    This case is one of the more recent ones: Kaschke v Gray & Anor [2010] EWHC 690 (QB) (29 March 2010)

    Here is a link to a UK High Court ruling on Internet Forum moderation handed down: http://www.bailii.org/ew/cases/EWHC/QB/2010/690.html

    This is interesting as the Court assess losses of ‘safe harbour’ in the eCommerce Directive 2000/31/EC and the regulations which give host defence protection from certain defamation/libel.

    While we all have interest in the Host Defence simpliciter, there are/may be, limitations to the scope of ‘post-moderation’ or what might be descibed as ex-post content editing and loss of the Defence in the eCommerce Directive – Ireland S.I. 68 of 2003.

    I should also highlight Eady J commenting on whether libel and slander are active on ‘chatrooms’ in the UK case of Smith v ADVFN Plc. [2008] EWHC 1797, Eady J considers this point of merger, in some detail. Obviously, these areas are now merged in Ireland under the 2009 Defamation Act.

    There are issues with this Directive and regulations in re. Definitions. I would also remark that the ECJ Judgment in Google France, Google Inc. v Louis Vuitton Malletier leaves unanswered the central question: What conduct is required before it can be said that such conduct is something more than merely technical, automatic and passive?

    Server logs may be very important.

    Regards,

    Ronan

  3. Another widely cited UK Case is: Lonzim Plc & others v Sprague [2009] EWHC 2838 (QB)

    A libel action over an article that appeared on the website of a South African magazine has been dismissed by a court in England. Evidence suggested that the article had received only four visits from the UK in a two month period.

    Describing the claim as being “totally without merit,” Mr Justice Tugendhat said the claimants had failed to establish “substantial publication” within the court’s jurisdiction.

    Another claim, alleging comments made by Sprague at a company AGM in London were slanderous, was also dismissed as an abuse of process. Only 30 people had attended the AGM, the comments were described as “clearly opinion,” and they were found to be not related to the personal reputations of the individual complainants.

    “The prospect for a shareholder at a company meeting of being sued by claimants such as these, for expressing opinions or views such as those alleged here to be slanders, would inhibit free expression,” wrote Mr Justice Tugendhat. “It would be very much against the public interest.”

  4. Just wondering how this all works. Do we just accept that defamation is now a part of life and that it’s only practical and desireable to request redress from those who can afford to pay out, i.e. established media? It sometimes seems a problem that has no solution within the current framework of grievance/litigation/resolution. I’d suppose that it will always be a case by case issue but the possibilities for casual, damaging utterances are so multiferous that the current laws seem hopelessly outdated. Having said that, defamation is a pretty simple concept and I can’t see any need to legislate for new technology. Not that there isn’t an issue here but I do think Dermot Ahern’s announcement has a little of the Father Ted mentality to it. Down with this sort of thing!

  5. I was just watching the ‘Libel Chill’ tweets and remembered that in terms of Journalism there are a number of new defences in the 2009 Act. Two I highlighted at a conference I spoke at back in Feb.

    Defences – Part 3:

    Section 26. Fair and reasonable publication on a matter of public interest – Potentially something which may arise in context of blogging and the Internet

    Section 27. Innocent publication – Internet and blogging also
    Extent;
    Nature; and
    Character of person involved.

    I think I will also mentioned these two:

    Section 20. Honest opinion – Self Explanatory
    Section 21. Distinguishing between allegations of fact and opinion.

  6. Interesting read Abigail, thanks for this useful summary.

    There seems to be well informed audience here, so I’ll ask a somewhat-related question: at what point (if any) does responsibility for what you say online in a professional sense transfer to your employer? If you look at the guidelines Intel use for their staff (http://www.intel.com/sites/sitewide/en_US/social-media.htm) it would appear that an employer will never bear responsibility for what an employee might say online, but I’m wondering if the same applies in an Irish context?

    Interested to hear your thoughts.

    David

  7. As Abigail pointed out, defamation has always been part of life. If you call someone a liar or thief in the pub – and it’s not true, of course – you’re guilty of slander; if you post a notice in the street with the same, you’re guilty of libel. Thinking that it’s somehow different for blogs or social network is frankly idiotic.

    As a service provider, what galls me is the amount of morons who email, phone and write threatening me personally with legal action because of what someone says on a site I operate or host, instead of acting like an adult and trying to resolve the issue diplomatically first. The amount of “if you don’t delete X I’ll need to consult my solicitor” bullshit I get is frankly staggering.

    Adam Beecher

  8. @Adam: Libel and Slander were merged in Ireland under the 2009 Defamation Act.

    As a Host you would be able to utilise the eCommerce Directive Host defence to good avail where you act properly where advised of improper or complained of content before the content you cite become the subject of a barrage of emails claiming defamation etc. This was successfully upheld here in a case called Mulvaney & Ors v The Sporting Exchange Ltd trading as Betfair [2009] IEHC 133, per Mr Justice Clarke.

    The eCommerce Directive was made brought into force in Ireland by Statutory Instrument 68 of 2003 or transposition of Directive 2000/31/EC
    Three regulations are of specific reference to ISPs:

    Regulation 18 – Host Defence
    Regulation 17 – Caching
    Regulation 16 – “mere conduit”

    In the context of defamation actions Regulation 18 has been mentioned before the Irish Courts in the case above.

    I’d make sure that you aren’t pre-moderating by the way, or if you are you might see that defence fail.

    “[O]perating a site” is a different thing. Like this one, the comments are pre-moderated.

    @David: All that is a rather well put together set of guidelines for employees. I’d not be so sure that in a court action that the employer would not be held what we call vicariously liable if a defamation occurred and was generated by an employee while in the course of business. This might have been undertaken correctly or incorrectly in the eyes of the employee agent or under instruction.

    Most/All, companies and collectives now have an IT Code of Conduct or ethics which if breached can result in serious and in many cases disciplinary consequences for the employee, never mind any other liability which might accrue as against the employer if the employee did what I suggest above in the course of their employment or indeed under instruction from someone in the company in a more senior position e.g., Editor/Journalist, Debt Collector/Agent ….
    lots of examples … Store Manager/Security Guard.

    Hope this is useful.

    Ronan

  9. Ronan, IANAL but I’d be very surprised if the meanings of the words “libel” and “slander” have changed. A tad pendaty there methinks. And I’m aware of my legal position, but that doesn’t stop the morons emailing, phoning and writing.

    Finally, not all sites are premoderated, which should make the operators of those sites “service providers” and not publishers. Unfortunately the law is wishy-washy on this, and judges are all over the shop.

    adam

  10. (pedanty) (which I’ll admit isn’t a word either)

  11. IAAL – Wasn’t being pedantic, and like you find the formerly available definitions of Libel/Slander useful.

    See below:

    6.—

    (1) The tort of libel and the tort of slander—

    (a) shall cease to be so described, and
    (b) shall, instead, be collectively described, and are referred to in this Act, as the “tort of defamation”.

    (2) The tort of defamation consists of the publication, by any
    means, of a defamatory statement concerning a person to one or
    more than one person (other than the first-mentioned person), and
    “defamation” shall be construed accordingly.

    (3) A defamatory statement concerns a person if it could reason-
    ably be understood as referring to him or her.

    (4) There shall be no publication for the purposes of the tort of
    defamation if the defamatory statement concerned is published to
    the person to whom it relates and to a person other than the person
    to whom it relates in circumstances where—
    (a) it was not intended that the statement would be published
    to the second-mentioned person, and
    (b) it was not reasonably foreseeable that publication of the
    statement to the first-mentioned person would result in
    its being published to the second-mentioned person.

    (5) The tort of defamation is actionable without proof of special damage.

  12. Makes sense I guess, and useful for dealing with the aforementioned idiots. 😉

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