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In the second in our series on tort and computer law Simon Halberstam examines the tort of defamation and the internet.
Given its background as a forum for free speech and the dissemination of ideas it is not surprising that, now e-mail is in the commercial mainstream, its transfer to that forum has produced certain problems. The problem centres on the fact that when sending Emails, many users feel free to express opinions they would not commit to paper when writing a business letter or talking to a group of colleagues. As a result of this, users often make imprudent statements. The problem with the net is that once the button is pressed to send a message, or the information or view in question is uploaded onto a website, it is “published.” In defamation it is at this stage that an offence occurs.
The accepted legal definition of defamation is “the publication of a statement which tends to lower a person in the estimation of right-thinking members of society generally.” The “statement” can be words, visual images or some other method of signifying meaning. Defamation takes two forms, libel and slander. Libel involves (amongst other things) writing or printing a defamatory statement. Slander is speech or gestures of a defamatory nature.
A person who is defamed may feel understandably aggrieved and may decide to take action to prevent circulation of the statement. Normally, the person would approach the publisher or the author. The problem with the WWW is that the identity of this entity is often far from obvious. So who does the aggrieved person approach, and ultimately sue particularly if the person who made the statement is untraceable or financially, not worth suing? In a number of notable recent cases, ISP’s have been sued for defamatory newsgroup content on the basis that they as hosts of the newsgroup, are the “publishers” of the defamation.
In Cubby -v- CompuServe  CompuServe were sued in respect of a message appearing in a local newsgroup. CompuServe had employed another company to edit and post information to the site and CompuServe argued that, as it employed a third party to edit information in the newsgroup, it was akin to a newspaper vendor who has no control over the content of the newspapers it sells. The New York court accepted this argument.
In Stratton Oakmont -v- Prodigy , another American case concerning a defamatory statement made in a local news forum, despite the fact that Prodigy had employed “board leaders” to remove material after it was posted, Prodigy were found to be publishers of a defamatory statement. The reasoning for this was that Prodigy advertised itself as a “family orientated computer network” which could control site content and prevent publication of inappropriate messages. As such, it had assumed responsibility for the site and was obliged to prevent publication of defamatory statements.
At long last, we have a case in Old Blighty. In 1997 an unknown person made a posting in the USA in the Demon newsgroup soc.culture.thai. The posting was “squalid and obscene”. It purported to come from an academic whose name is Laurence Godfrey and invited replies to his email address. Mr. Godfrey does exist but was not the author of the statement. The effect of the statement was to defame Mr. Godfrey. When Mr. Godfrey became aware of the posting he sent a letter to the managing director of Demon informing him that the statement was a forgery and requesting that it be removed. The statement was removed by Demon approximately ten days later in the course of ordinary news filleting.
Mr. Godfrey claimed that this had been too slow. Demon claimed that under the Defamation Act 1996 they had a defence in that they were not the publishers of the statement. The court agreed that Demon was not the publishers. However, its defence failed as Demon could not show that it did not “know or have reason to believe that what [it] did contributed to the publication of a defamatory statement.
Whilst in the above case, Demon conceded that it had the ability to delete one message from a newsgroup, this is not always possible and in some cases, to prevent publication of one defamatory statement, a whole newsgroup would have to be deleted. It seems obvious that problems will arise in cases where a person claims a statement defames them and the ISP either has no way of knowing whether the statement is defamatory or whether the complainant is in fact the person defamed. Another concern for ISP’s must be whether, by deleting statements or whole newsgroups, they are breaching their contracts with the users who expect to participate in and receive news from newsgroups.
In light of the Demon case, ISP’s should consider monitoring sites they host and removing ‘offensive’ text and implementing a procedure whereby complaints made can be investigated. It would also be advisable for an ISP to review its terms of business so that it can remove or suspend postings without being in breach of its contract with users.
A slightly different variant of the problem comes with those who host client websites where a third party alleges that the website contains defamatory information. Who does the host believe and should it risk breach of contract with its client by removing the material or “pulling” the website?
For employers the problem is particularly acute as they are responsible for emails sent by their employees. A defamatory email cost Norwich Union £450,000 last year. It is therefore vital for companies to have proper email policies in place and to make appropriate changes to the contracts of employment in order to give the email policy teeth.
Simon Halberstam has produced a guide to the legal issues including a detachable email policy for employees and provide in-house seminars to companies on the legal implications involved in doing business on the WWW.
© This article is copyright Simon Halberstam 2008 and should not be construed as legal advice or opinion in any specific facts or circumstances. the contents are intended for generic information purposes only. You are urged to contact a suitably qualified lawyer for specific advice.