UK: Internet Defamation Reputations At Stake?

Originally published in Lawrence Graham's 'SmartLaw' newsletter, March 2007

© Lawrence Graham LLP

Internet message boards and discussion forums can provide fertile ground for the sowing and cultivation of defamation proceedings. And increasingly it can be the internet service providers who find themselves in the front line. SmartLaw explains.

Tour a few informal internet forums, where participants are free to articulate potentially subversive views and contributions are published instantaneously, and it won’t be long before you come across something that the mainstream media would probably not dare publish for fear of legal action. When a message board posting turns defamatory it can be very difficult, if not impossible, for the slighted party to identify the original author and so start proceedings against them. And, sadly, even if the person can be identified it often doesn’t do much good; they are likely as not an impecunious individual rather than a wealthy company, unlikely to be worth pursuing for damages.

Not surprisingly then, some victims of online defamation have begun to cast their net wider in seeking someone to blame, and sue, for their discomfort. With the rapid growth of user-generated website communities such as MySpace and YouTube, it seems that some internet businesses may be putting their cash and their reputations at risk by not taking the threat of defamation-related issues more seriously. Some recent cases have illustrated the dangers that lurk in what is a far from straightforward legal landscape.

Last year, in what is believed to have been the first case of its kind (Michael Keith-Smith v Tracey Williams), the High Court awarded damages against someone who had made libellous statements on an internet bulletin board about a member of the UK Independence Party. The claimant first obtained a court order requiring site operator Yahoo! to disclose the defendant’s identity then issued proceedings. He won damages for injury to reputation (which included aggravated damages) as well as an injunction preventing the claimant from making further defamatory statements online.

In fact, ISPs often remove offending statements as soon as a complaint is received and before legal action can begin; they are all too aware of the risks of ignoring such requests. But the question remains, should an ISP actively monitor or moderate chat rooms and message boards? And if they do not, do they risk becoming a defendant in a defamation case when, perhaps, the real author cannot be identified or traced?

In another recent case, Bunt v Tilley, the claimant brought proceedings against three ISPs (AOL, BT and Tiscali). Mr Bunt initially issued proceedings in relation to allegedly defamatory statements published on internet message boards against three individuals who had, he alleged, posted the offensive messages. But then he included in the action the ISPs who had provided the internet services which had enabled the three individuals to access the websites in question. The ISPs were able to rely on the defence of "innocent dissemination", set out in the Defamation Act 1996, and the High Court dismissed the action.

Under English law a defamatory statement is one which lowers the claimant in the estimation of rightthinking members of society in general. To succeed in an action for defamation the claimant must show that the words being complained of: (a) are defamatory; (b) identify or refer to the claimant; and (c) are published by the defendant to a third party.

But even if these requirements are met the defendant may still be vindicated, either by proving the truth of the original contested statement or by relying on one of several defences. The defence of ‘innocent dissemination’ is available to secondary publishers (including ISPs) who can show that:

• they were not the author, editor or publisher of the statement;

• they took reasonable care in relation to its publication; and

• they did not know, and had no reason to believe, that their actions caused, or contributed to, publication of the defamatory statement.

The E-Commerce Regulations 2002 also provide ISPs with an exemption from liability where they: act as a "mere conduit" in order to transmit information; simply cache information; or host material but do not have actual knowledge of any unlawful activity related to it. In the Bunt case the judge commented that, as a matter of law, an ISP performing no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher. None of the ISPs had knowingly participated in the publication of the alleged defamatory statements. They were, therefore, found to be not guilty under the relevant legislation.

Nonetheless, ISPs and message boards hosts may still find themselves in something of a legal quandary: if they fail to monitor their sites they are, arguably, failing to take "reasonable care" in relation to publication; but if they monitor a message board and decide to exercise editorial control over its content, they run the risk of being classified as an "author, editor or publisher" and so can no longer rely on a defence of "innocent dissemination". In most instances, as soon as a message board host or ISP receives this kind of complaint, they take no chances and remove the offending statement immediately. But doesn’t this, in turn, raise concerns in respect of freedom of speech? Should ISPs be left to decide what is, and what is not, offensive and/or untrue?

These cases have also raised questions for hypertext links; namely, are the providers of such links (or indeed search engines in general) also "publishers" for the purposes of English defamation law? They may indeed be viewed as contributing to publication by encouraging users to access defamatory statements. In addition, their position is made more vulnerable if aggrieved parties believe that they will be more successful in bringing a claim against the site owner than the person who actually made the statement.

In 2005 the government conducted a consultation on extending the liability limitations in the E-Commerce Directive (from which the E-Commerce Regulations are derived) to include the providers of hyperlinks, location-tool services and content-aggregation services. Hyperlinkers and location-tool service providers have argued that they should be provided with the same protection afforded to "mere conduits" because their services are similar to those who simply host content. However, the contrary argument is supported by the fact that hyperlinkers, unlike ISPs, obtain financial benefit from the transmission of information and are, therefore, directly involved in providing the potentially defamatory information.

The consultation results were published in December 2006 and the government’s conclusion appears to be that there is currently insufficient evidence to justify an extension. However, it does seem that there is a more widespread acceptance of the need for some sort of notice and take-down regime, backed by a statute that clarifies exactly what actions website owners should take, and when.

So, on balance, we must conclude that anyone who runs a website which contains hypertext links or message boards may be at some risk from an action in defamation if statements are posted which contain potentially damaging information. All websites with bulletin boards must ensure that they are vigilant in monitoring potential abuse and that they respond quickly to any complaints about offensive or misleading messages.

True, this approach does raise issues in relation to free speech. It has even been argued that this type of censorship goes against the very founding ethos not just of message boards but of the Internet itself. But with user-generated sites such as MySpace and YouTube increasing in popularity (and financial clout) it remains to be seen how effective any such censorship by ISPs and webhosts could ever be. In the end it seems more likely that internet-based companies will prefer to take out insurance to cover potential claims rather than increase editorial control and risk offending the sensibilities of their valuable users.

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