A simple click on a computer has the ability to send a defamatory statement to a huge audience across the world instantly. Whilst the internet has many fine uses, it can also pose a huge threat to any one’s reputation, particularly those in business.
To be defamatory, a statement must tend to lower someone in the estimation of right thinking members of society generally. The party aggrieved has to show that the words are defamatory (in the sense above); refer to or identify him; and are published to someone other than him. Having established that, the person making the statement has to prove it is true; amounts to fair comment; is privileged; published with consent; or was innocently disseminated (of which more later).
Defamation comes in two forms. Libel is the publication in permanent form of the statement, whilst slander is only transitory. If the statement is slanderous, the party aggrieved generally has to prove at least that he has suffered some actual financial loss, which is not the case in libel action.
The publishers of defamatory statements can be held liable in respect of them. A publisher can include anyone who participated in the publication of the statement. Primary publishers are those who exercise directed editorial control over the statement (such as authors, editors and publishing houses). Secondary publishers do not take an editorial role but still make the statement available to others. The distinction is important in relation to the web. For example, the author of the statement often cannot be identified or is not worth suing and so it is normally better to pursue the secondary publisher, say, the owner or operator of the website (ISP). In practice, ISPs are often the first target for those wishing to have a defamatory statement removed from the internet.
The Defamation Act 1996 provides a defence to such operators so that they will not be liable if they can show that: they were not the author or editor of the statement; they took reasonable care in relation to the publication; and that they did not know (and had no reason to believe) that what they did caused or contributed to the publication of a defamatory statement.
The Act has been interpreted by the Courts. Essentially, to rely on the innocent dissemination defence, an ISP will have to remove allegedly defamatory postings as soon as the ISP receives notice of their existence. The ISP cannot really investigate the merits of the allegations nor consider any other defences available to him before removing them, unless the ISP suspends access to the pages while it does so. The practical result is that it is simply not worth the risk to the ISP of allowing the page to remain available to the public.
To help to protect themselves, ISPs have adopted a number of methods. They incorporate procedures in their arrangements with customers for dealing with such complaints, often including setting response times for examining complaints and removing material; maintaining records of complaints and the action taken; and making clear to their customers the parameters of acceptable content.
Secondly, in subscriber contracts, ISPs will reserve the right to remove material at their discretion. The wording normally asserts that it is the ISP’s reasonable opinion or the ISP having not received notice of a complaint that triggers the ability to suspend publication.
Thirdly, if notice has been given the ISP may be willing to take an indemnity from the website owner but only if satisfied that the owner is financially secure.Â In that case, the ISP may allow the defamatory material to remain on its server but, in most cases, an ISP will not take the risk, since indemnities can be difficult to obtain and enforce.
Usually the Court will not expect the ISP to scrutinise all of its material for potentially defamatory statements. Reasonable care has to be taken once the ISP has been notified of a potentially defamatory comment. Once notice is given, the ISP must react quickly. The speed of the web means that, even if the ISP reacts quickly and efficiently, enormous damage can still be done. The ISP will not be at fault and should not be fixed with liability if the ISP reacts quickly and reasonably.
Finally, a word of warning. To the cost of many litigation lawyers, the time for bringing an action for defamation is severely restricted to only one year (as opposed to the more usual 6 years for other matters). That having been said, a fresh claim arises each time a defamatory statement is published, which is obviously particularly relevant to the internet given the existence of online archives.