English defamation law obsesses the rest of the world. And for good reason - dealing with on-line libels is becoming increasingly relevant for businesses of all sizes. Barry Fishley reports
The media world has changed beyond recognition in the last 10 years – most of us will remember a time when those with a grievance against a company or a grudge to vent were limited to complaining to a friend or writing to a newspaper. Now, with the explosion of on-line social media, criticism can be spread within seconds, which, if picked up by news web sites, can go viral and be viewed by millions.
Consumers are also finding novel ways of criticising, with parody Twitter pages and comic YouTube videos growing in popularity.
Historically, the perception was that English defamation laws were more ‘claimant-friendly’ than other jurisdictions. That, coupled with the dominance of English as the language of business, means claimants often choose to consider litigating in England, even if the circulation of the alleged defamatory words is relatively low in the jurisdiction itself.
So what should potential claimants ponder before launching into an English on-line defamation action? Essentially, there are five core questions:
Are the comments actually defamatory?
The law protects against defamatory -- as opposed to merely offensive -- comments. A defamatory comment is one that lowers -- or is substantially likely adversely to affect -- the subject in the estimation of right-thinking members of society or has a tendency to do so.
[open bold]Who should be notified?[close bold]
Most web sites have a reporting facility whereby a pro forma form can be sent directly to the legal team or abuse team, and this should be the first point of contact, followed possibly by a letter to the site’s legal team.
What should the notice include?
An internet service provider (ISP) must have ‘actual knowledge’ of the alleged defamatory comments before it is deemed to have any liability for publishing them or is obliged to remove them. European law provides some guidance on this and suggests several points should be made to the ISP to give rise to this liability or obligation: the name and address of the sender of the notice, the location of the information in question, details of the unlawful nature of the activity or information in question.
Any notice should also list: the location of the defamatory words, including the web page address; the exact words complained of; the reason the words are defamatory; the reasons they are untrue, and what the true position is. It should also address any potential defences that might be available to the original publisher of the information and set out why they would not apply on the facts.
Who is liable and who can be sued?
Writers of defamatory comments are often not worth pursuing, as they lack sufficient assets and enforcement action can be difficult. Therefore, assess whether the ISP can also be liable.
Unfortunately, the case law is inconsistent on this point with Google v Tamiz focusing on freedom of expression and holding that Google should not be seen as the publisher of comments on a blog hosted on Google’s blog platform, Blogger.com, even after receiving notice. However, the earlier case of Davidson v Habeeb found that it was arguable that Google was a publisher of the defamatory material, particularly after being notified of such.
The judges in both cases did agree on one point -- Google could rely on the hosting defence under the EU’s E-commerce Directive, which provides immunity to ISPs that are unaware of the infringing material.
How can anonymous attackers be identified?
A Norwich Pharmacal order is now commonly used to compel an intermediary who is involved in the wrongdoing of another to identify that person to allow legal action to be taken. Recently, Golden Eye (International) and 13 other claimants successfully obtained a Norwich Pharmacal order against O2 for disclosure of the names and addresses of O2 customers who were alleged to have infringed the claimants’ copyrights through peer-to-peer file sharing. It has also frequently been used to identify anonymous bloggers.
Other tips for business:
Regularly review the web and social media sites. Create a Google alert for your organisation’s name -- with miss-spellings and other variations – to keep abreast of on-line comments.
Do not ignore negative, false or misleading statements made about your business by bloggers or other social media users or parody Twitter accounts. However, before objecting to comments, make an assessment as to the seriousness of the comment and potential damage it may cause as well as where it is located.
Use social media in a positive way – establish official Facebook and Twitter pages.
Designate and train an internal response team to handle damaging statements or content. Develop internal policies for dealing with complaints – for example, take the discussion off the site and do what you can to rectify the situation.
Ensure any take-down notice complies with the legal requirements highlighted above – copy notices to the site’s legal team, if the on-line form/process does not allow for sufficient comment.
Consider media liability insurance if your business is at high risk of making or receiving claims.
It is worth noting that the US approach to defamation is far less favourable to claimants than the English approach. In the US, claimants must prove fault (either to a malice or a negligent standard, depending on the claimant) and damage. Contrast that with the English law position, where a claimant must merely prove the publication of a defamatory comment, with damage then presumed.
Weil associate Alicia Caher also contributed to this blog