Defamation

Internet defamation and the 'age of humiliation'

As many have argued, the internet etches an indelible tattoo upon the reputations of those whom people tag, ridicule and ‘out’ — be they cat women, dog poopers or just obnoxious celebrities. But this is probably nothing new:

All of us now live under the threat of easy and instant humiliation. It’s no longer just celebrities and business executives who need to think about aggressive reputation-protection and face-saving techniques.

“Human nature hasn’t changed,” says Jonathan Bernstein, a crisis consultant in Los Angeles. “There have always been people whose aim in life was to cause pain to others. If they saw people embarrassing themselves, they got pleasure in sharing that information. Before the Internet, they had to gossip with their neighbors. Now they can gossip with the world.”

Others argue that there has been a ratcheting up of meanness—that the changes in technology have made us nastier and more cynical. “It’s like a blood sport,” says Mr. Fink, who runs a crisis-management firm in Los Angeles. “It feels like everyone has their cellphone out, ready to take a photo that will hurt someone else.”

Defamation law reform in the United Kingdom: Public interest edition

Jack Straw yesterday announced three proposals to reform English defamation law, which has long been considered one of the most plaintiff-friendly in the world. The proposals are designed to curb perceived ‘libel tourism’ by foreign magnates, sheikhs and oligarchs, who have used English courts to stifle criticism in publications whose distribution within the United Kingdom is incidental.

If the proposals are adopted by Parliament (which would not occur until after the general election), three main changes would be made to the law:  Read more »

  • single publication rule: unlike American law, UK (and Australian) defamation law views a separate tort as being committed whenever defamatory material is published (which is to say, communicated) to another (see Duke of Brunswick v Hamer); thus, each separate pageview of a defamatory website is, technically, a separate libel, with the effect that an online newspaper archive could face indefinite liability, since the limitation period restarts with each new impression (as occurred in Loutchansky v Times Newspapers Ltd [Nos 2–5]). Under the proposal, plaintiffs will be able to bring a single action in respect of a defamatory allegation, and will be required to do so within one year of the original publication, subject to discretionary extension by the Court.
  • public interest defence: currently there is no general defence to a claim of defamation that publication was ‘in the public interest’ (though this is a relevant factor in relation to certain forms of qualified privilege, and in relation to the Reynolds privilege). According to the announcement, ‘consideration will be given’ to a general defence of this nature. This seems problematic, since the notion of what is in the public interest is rarely beyond dispute, meaning that this defence won’t provide certainty to investigative publishers. Moreover, the burden of proof still rests on the defendant.
  • stronger requirements for service outside the jurisdiction: the Civil Procedure Rules will be strengthened (though in precisely what form is unclear) to make it more difficult to obtain an order for service outside the jurisdiction where allegedly defamatory materials have been published abroad but are accessible in England.

Mr Justice Eady on internet defamation: time for international consensus

In a speech delivered at the Centre for Law, Justice and Journalism in London last week, Sir David Eadycalled for an end to nationalised approaches to litigation arising from internet communications:

What is plainly required is an international agreement to govern communications on the web and, in particular, to determine whether they are to be regulated by an agreed set of supra-national regulations or, if not, to provide a generally acceptable means of deciding which domestic law should apply to any offending publication. But clashes of law are undesirable and will only come increasingly to sour international relations. I would characterise this as essentially an international problem deriving from technical advances. It is obviously not a specifically English or UK issue.

The full speech (bizarrely entitled ‘Strasbourg and Sexual Shenanigans: A Search for Clarity’) is well worth reading. It provides an engaging and erudite overview of the history of media regulation in the United Kingdom, and gives a nuanced account of some of the issues facing courts and legislatures when setting the balance between the rights to freedom of expression and private life.

Google wins online defamation case: not a 'publisher' of website content

In an eminently sensible decision, Eady J has held that Google is not liable for defamatory material that appears in the extract displayed underneath search results.

Stated more precisely, Metropolitan International Schools Ltd v DesignTechnica Corporation [2009] EWHC 1765 (QB) now stands for the proposition that the facilitator of a defamatory imputation who, without human input or authorisation, causes that imputation to be conveyed without knowledge of its character, cannot be characterised as a publisher at common law. The case revolved around a forum thread (I do not endorse its contents) hosted on the first defendant’s website. That thread contained posts made by users alleging that the plaintiff’s distance learning courses were ‘nothing more than a scam’. The thread ranked highly (3rd and 4th) on searches for the plaintiff via Google.co.uk and Google.com. As is Google’s practice, the search results included extracts of matching text, including ‘Train2Game new SCAM for Scheidegger’ (you can see it here). The plaintiff argued that this was defamatory and commenced proceedings against DesignTechnica, Google UK and Google Inc.

Eady J held that Google Inc could not be liable, even assuming that the comment was defamatory, and accordingly ordered that an earlier decision allowing service outside the jurisdiction be set aside:

[48] I turn to what seems to me to be the central point in the present application; namely, whether [Google Inc] is to be regarded as a publisher of the words complained of at all. The matter is so far undecided in any judicial authority and the statutory wording of the [Defamation Act 1996 (UK)] does nothing to assist. It is necessary to see how the relatively recent concept of a search engine can be made to fit into the traditional legal framework …

[49] When a search is carried out by a web user via the Google search engine it is clear … that there is no human input from [Google Inc]. … It is performed automatically in accordance with computer programmes. … It is fundamentally important to have in mind that [Google Inc] has no role to play in formulating the search terms. Accordingly, it could not prevent the snippet appearing in response to the user’s request unless it has taken some positive step in advance. There being no input from the Third Defendant, therefore, on the scenario I have so far posited, it cannot be characterised as a publisher at common law. It has not authorised or caused the snippet to appear on the user’s screen in any meaningful sense. It has merely, by the provision of its search service, played the role of a facilitator.

For more details about this very interesting case, please continue reading.  Read more »

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