Healys' litigation executive Gemma Furniss discusses the modern phenomenon of social networking sites and their part in defamation litigation.
It seems that everyone is partial to posting a ‘blog', a ‘tweet' or a comment on a message board but how often do the authors consider the consequences of their 'publications'.
Defamation is emerging as a popular force against not only the poster of the comment but the Internet Service Provider (ISP) hosting the site. Defamatory comments are divided in to two categories: slander; and libel.
Since the emergence of social networking sites, forums and chat rooms consideration has had to be given to whether the comments fall in to the definition of a permanent (libel) or transient (slander) category. Traditionally speaking defamatory comments in a written form are actionable in libel however in Smith v ADVFN PLC Mr Justice Eady ruled that defamatory comments, posted on bulletin boards are more akin to slander than libel due to their conversational nature.
The distinction between libelous and slanderous comments is important. Slander requires the comment to be per se or else the Claimant bears the burden of proving that financial loss has been suffered as a direct consequence of the comment, ‘special damages'. There is no such requirement in libel actions and the Claimant must, per the Defamation Act 1996, show that his reputation was lowered in the mind of the reasonable person. The defences to slander and libel are privilege, truth or fair comment on a matter of public interest without malicious intent.
Traditionally there was a one year limit from the date of publication for the Claimant to pursue a claim in defamation. This principle is all well and good where defamatory comments contained in a newspaper or magazine would have become tomorrows chip paper. However, with the explosion of the internet and ability of the surfer to access aged information at the click of a button the defamatory comment will not disappear so easily.
The authorities have considered this and adapted the limitation period accordingly. Republication of the defamatory comment is deemed to occur each time a reader accesses the article and in Loutchansky v Times Newspapers [2001] the limitation period for online publications is ongoing.
This may cause some confusion. Bulletin board and chat forum comments are archived and accessible by the surfer, therefore the limitation date should be ongoing per the ruling in Loutchansky. However by their very nature slanderous comments are transient and so it would seem contradictory that the limitation period for a transient comment may be ongoing. A flippant slanderous comment would generally have a fleeting impact but with such comments now being able to reach a wider audience and for a potentially infinite period, should the Claimant bear the burden of proving ‘special damage' to succeed in the claim?
The hurdle of proving damage may in some cases be secondary however as quite often bulletin board users conceal their identity and post using an anonymous account. In Godfrey v Demon Internet [1999] ISPs were deemed responsible if they failed to remove the offending material as soon as they became aware of it. The Ecommerce Regulation 2002 has given further guidance on the liability of ISPs who may be liable for a post on their message board if they have actual knowledge of the post but they did not act quickly to take the post down when notified of it (usually within 24 hours).
The ISP will need to consider its contractual obligations to the maker of the comment and weigh this up against the potential liability they face if the comment is not removed from their site. If the comment is from an anonymous source then the ISP should not hesitate to remove the comment. The liability of the ISP may be favourable to the Claimant as the process of identifying the anonymous poster may be lengthy, costly and time consuming. The ISP may also be in a better financial position and than the regular Joe Bloggs sat posting on a message board from his bedroom.
The Facebook Case (Applause Store Productions Ltd v Raphael [2008]) is one example where an order for disclosure of the registration details and the IP address of the fake profile was made. In this case the Claimant initially sought and obtained the order against Facebook to disclose the details and subsequently successfully claimed damages to the tune of £22,000 from the Defendant, who was identified as a result of the information Facebook was ordered to disclose.
If you happen to come across online defamatory material about you or your business you must consider the seriousness of the comment against the likely cost of pursuing an action. Contacting the ISP and requesting the comment to be removed would be the obvious first step but if the comment is so damaging you may wish to pursue the matter. In addition to the above factors you will need to consider the audience that the comment has reached as damages will be awarded with this in mind and, after all of the above, you will need to bear in mind the likelihood of recovering any damages awarded.
Making a defamation claim with the specialist team of solicitors at Healys
Healys has the experience and expertise to act for both claimants and defendants in defamation actions and has specialist defamation solicitors in both our London and Brighton offices.
For more information on making a defamation claim please contact Gemma Furniss in our Brighton office, direct dial on 01273 664 093 or email gemma.furniss@healys.eu
Alternatively contact partner Nicholas Taylor in our Brighton Office, direct dial on 01273 669 128 or email nicholas.taylor@healys.com
In our London office you can speak to partner Robert Johnson, direct dial on 020 7822 4106 or email robert.johnson@healys.com
