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March 14 2011

18:54

When is an online comment defamatory?

Rob Minto looks at two recent cases that leave the field of libel online as confusing as ever.

For several years, newspapers, bloggers and other online publishers have been waiting for a landmark case to clarify defamation online.

The unanswered questions have been along the lines of: who’s responsible – the author or publisher (or even ISP)? What jurisdiction will it fall in? What kind of audience is required (if at all?)

In the UK, in quick succession, there have been two cases which have, if anything, muddied the waters.

Most recently there was the case of libel between Caerphilly town councillors Eddie Talbot and Colin Elsbury. Mr Elsbury claimed on Twitter that Mr Talbot had been removed by police from a polling station. Mr Talbot has successfully sued him for libel, and Mr Elsbury had agreed to pay Mr Talbot £3,000 in compensation, to publish an apology on his Twitter site, and pay legal costs.

At time of writing, Mr Elsbury has 30 followers on Twitter, a group that could easily fit into a pub (relevance will be clear later).

Some clarity, you might think – but earlier this month, Jane Clift lost her case against the Daily Mail, in which she was trying to get the identities of two commenters on a Daily Mail article to sue them for defamation.

This from Out-Law:

Mrs Justice Sharp said that Clift’s case was not strong enough to merit the identification, and that she should not have taken the comments as seriously as she did.

“It was fanciful to suggest that a sensible and reasonable reader would understand those comments as being anything more than ‘pub talk’,” she said in her ruling.

This raises a lot more questions than it answers. In no particular order:

  • The Daily Mail has an audience of millions. That’s far bigger than a pub. How is it not defamatory to post something libellous on a website? If the comments were not defamatory, then give her the names, let her try and sue, and she can lose that case in a court of law.
  • If the comments were not defamatory, then why has the Mail removed them?
  • Was Ms Clift penalised for looking like too much of a complainer? Originally, Slough council put her on some watch-list for complaining about a drunk, she then sued them (and won), and then has taken a legal case against the Mail. On paper, that looks like a lot of complaining. But then, what was she supposed to do? She’s in a Kafka-esque chain where one (legitimate) complaint has led to another, and to her life being up-ended. She’s using the courts, which is what they are there for. Except for libel, where she’s been restricted.

So, to sum up: if you post something libellous on Twitter about a local rival politician, and have only 30 followers, you can get sued. If you say something potentially libellous, using a pseudonym, on a UK newspaper site, with page views in the millions, you’re fine – that’s just “pub talk”.

I’m quite confused.

[Disclaimer: I work as the Interactive editor at the Financial Times. On FT.com we have users comments on our blogs and other sections of the site, and operate a post-moderation policy.]

October 04 2010

11:36

September 20 2010

11:37

August 16 2010

10:25

August 04 2010

14:44

July 09 2010

08:50
08:46

June 09 2010

09:10

April 15 2010

10:24

April 14 2010

10:15
09:52

April 01 2010

10:31

January 29 2010

14:21

January 12 2010

08:43

December 16 2009

07:24

Defamation and the internet: a consultation response to the Ministry of Justice

Last month I blogged about the consultation currently taking place on the law of defamation and the multiple publication rule. The deadline for that is today. Below I’ve published my own responses. If you feel I’ve got something wrong or missed something, please let me know.

Question 1. Taking into account the arguments set out [in the document], do you consider in principle that the multiple publication rule should be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.

Comments: Based on the arguments set out, I do not believe that the multiple publication rule should be retained. The primary reason for this is that the burden of proof in these cases rests on the publishers, in situations where any records may well have disappeared. This is particularly problematic when employment within publishing is increasingly unpredictable, and employees – along with their records – are either frequently leaving or being made redundant from positions, or working for the organisation on a freelance basis. A single publication rule should be introduced.

In addition, the multiple publication rule is based on a print-based industry where defamatory material might be hard to access. In an industry that commonly publishes content online, with its concomitant findability, ease of distribution, and monitoring, it would be particularly unusual for a person not to become aware of defamatory content within a year of its publication.

Question 2. If the multiple publication rule were to be retained should there be an obligation to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?

Comments: Yes. This would not only guard against other actions but also alert potential witnesses who may read the article or, in future, receive updates on it.

Question 3. Do you agree that if a single publication rule were to be introduced, it should apply to all defamation proceedings, not just those relating to online publications?

Comments: Yes. Otherwise someone could simply use online archives to find the material but visit the physical archives to support their case.

Question 4. If a single publication rule were introduced,

a) should it be made obligatory to remove or amend material held in other formats under the control of the same publisher in the event of a successful defamation action against the original publication of the material?

Yes. Clearly if material is found to be defamatory then the publisher should alter any defamatory material under their control.

b) should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?

No. The idea of an article, for example, linking to defamatory material being defamatory itself would seriously threaten the culture of transparency in web publication where authors are expected to link to their sources.

Question 5. 
b) Should online content that has been modified be regarded as a new publication?

No. This would discourage useful modifications and corrections as staff would then have to check the entire text every time a small element of it was brought to their attention. If every modification was considered a new publication, publishers would simply leave erroneous or outdated material unchanged.

Question 6. As an alternative to introducing a single publication rule, do you consider that the Defamation Act 1996 should be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.

Comments: I am inclined to say ‘Yes’ here because it restricts the opportunity for profit-motivated legal action against published. However, such a move also runs the risk of inclining publishers to complying with such requests to avoid losing their qualified privilege. Both elements need to be factored in.

Question 7. Do you agree that if the multiple publication rule is retained, the limitation period should remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?

Comments: Yes. As the current one year period is not causing problems, there appears little reason to extend to ten years.

Question 8. 
a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?

From publication. The introduction of date of knowledge is problematic to prove and makes preparation of a defence equally complicated. Given the accessibility of contemporaneous content, those with reputations are likely to monitor online media for mentions and become aware of defamatory content quickly. The increased ability of people to search, distribute and access content online makes it difficult to support any limitation period based on date of knowledge.

December 11 2009

00:00

Is It Legal for an Editor to Unmask an Anonymous Commenter?

On November 13, the St. Louis Post-Dispatch's website, StLToday, asked readers to comment on a story titled, "What's the craziest thing you've ever eaten?"

Soon, a commenter posted a reply that included a "vulgar, two-syllable word for a part of a woman's anatomy," according to an online account by Kurt Greenbaum, the paper's director of social media. Editors at the website promptly deleted the comment, only to see the commenter repost the same word just a few minutes later.

What happened next has been the subject of discussion and debate within the world of online journalism.

For his part, Greenbaum summed it up in the title of his blog entry about the incident, "Post a vulgar comment at work, lose your job."

Sick of the commenter's shenanigans, he located the person's IP address, and tracked them to a local school. Greenbaum then called school officials and told them about the comment. The school's IT coordinator was able to pinpoint the post to a specific employee who was confronted by school officials and "resigned on the spot."

Greenbaum, who declined to be interviewed for this story, soon published another blog post explaining his actions. He admitted that he may have overreacted by calling the school, but stated, "I am constantly frustrated by the difficulty of dealing with this kind of language" on the paper's website.

Greenbaum's blog entry was republished on the Post-Dispatch's website and has received over 450 comments. In an angry response, an anonymous person created a website mocking Greenbaum, repeatedly calling him the same "vulgar, two-syllable word for a part of a woman's anatomy" that started everything.

Aside from the ethical debate about this incident, there are two important legal questions to consider.

Can He Do That?

The first question: Is what Greenbaum did legal? Answer: yes, probably.

The paper's privacy policy states that the Post-Dispatch and its employees "will not share individual user information with third parties unless the user has specifically approved the release of that information."

However, the policy also states that a commenter's IP address "does not contain personally identifiable information, nor does it identify you personally." Thus, the Post-Dispatch would argue, Greenbaum's use of the anonymous commenter's IP address is not a violation of the website's privacy policy.

Tom Curley, an attorney with the media law firm Levine Sullivan Koch & Schulz, said that the legal rules surrounding comments and message boards "can vary widely from site to site." Curley said some websites may provide an absolute promise to not reveal any identifying information, while others may offer only conditional promises.

Additionally, websites are a form of private property, and can be managed as such.

"There are some websites that are open forums, which is perfectly fine," Curley said. "But there is nothing that stops a website, legally, from deciding that there are some things that shouldn't be published."

Ethical Implications

In his blog post, Greenbaum stated that the Post does not routinely "take the steps I took in this case. For particularly bad cases of abusing our guidelines with vulgarity and obscenity, we would not rule it out."

malcolm moran.jpg

Malcolm Moran, a professor of media ethics at Pennsylvania State University, questioned Greenbaum's approach. "The main ethical question I would raise in this case is: When does an editor decide the rules change?"

The Post-Dispatch's terms of service state that the website "encourage[s] a free and open exchange of ideas in a climate of mutual respect." However, Greenbaum's actions could chill that climate of open exchange and mutual respect.

"What happens if a person comments about a controversial issue and has legitimate reason for staying anonymous?" Moran said. "Next time, will an editor identify that person if he or she disagrees with the commenter's views?"

Attacking the Editor with Anonymous Speech

The second legal question is whether Greenbaum can sue the anonymous individual who created a website ridiculing him. The likely answer: no.

The anonymous website created in Greenbaum's name is vulgar, to say the least. But that does not make it defamatory. In order to sustain a lawsuit for defamation, a plaintiff must show that the words in question state or imply false facts. Simply calling an individual a degrading name does not imply a fact at all. Rather, it is a non-actionable figure of speech.

Thomas Dienes.jpg

Thomas Dienes, a professor at George Washington University Law School, said the mocking website may be in bad taste, but is not defamatory. "This case would be thrown out of court so fast that I can't imagine a lawyer would take it," Dienes said.

"Over the years, there have been a number of these types of websites devoted to a particular reporter. It's rare but not unheard of," Curley said. "Normally, the reporter just shrugs and it all blows over."

This incident is a case study in the struggle that news organizations face when it comes to allowing anonymous speech on their websites. On one hand, this speech can be vile, cowardly, vengeful and tasteless. On the other, anonymous speech can be valuable and is also constitutionally protected.

"The tradition of anonymous speech in this country is incredibly important," Curley said. In fact, media organizations themselves have noted the importance of confidential sources and anonymous speech.

Anonymous Speech Being Tested

Two Supreme Court cases, often referred to as Talley and McIntyre, have affirmed the idea that "an author's decision to remain anonymous...is an aspect of the freedom of speech protected by the First Amendment."

Although this constitutional right only exists in the context of government regulation, the importance of anonymous speech, even if it is in the form of an anonymous comment on a news outlet's website, still holds its importance.

That does not mean, however, that all anonymous speech on the Internet is free from liability.

Recently, plaintiffs in New Jersey, South Carolina, and California asked judges to subpoena the identifying information of anonymous bloggers and commenters in order to sue them. The frequency of these types of subpoenas has reached a dizzying pace.

Generally speaking, courts have taken two different approaches in determining when to reveal the identity of an anonymous blogger or commenter. First, some courts require that a plaintiff make a "good faith" showing that the he or she has a viable lawsuit before a judge will subpoena any identifying information. These courts offer anonymous speech a particularly low level of protection, believing that everyone should have their day in court.

A second group of courts require that higher standards be met before an anonymous poster is revealed. These courts employ either the Dendrite test or the Cahill tests, as they are commonly known. The Dendrite and Cahill procedures require plaintiffs to show a litany of factors before receiving any identifying information.

The law concerning what you can and cannot anonymously publish on the Internet is undergoing change on almost a daily basis. This back-and-forth has left the legal state of anonymous speech on the Internet as uncertain at best.

Rob Arcamona is a second-year law student at the George Washington University Law School. Prior to attending law school, Rob worked at the Student Press Law Center and also helped establish ComRadio, the Pennsylvania State University's student-run Internet-based radio station. He writes the Protecting the Source blog.

This is a summary. Visit our site for the full post ».

November 20 2009

12:23

November 19 2009

09:39

November 09 2009

20:51

Do something now: help change the daft defamation law on online publishing

Forget about turning your Twitter avatar green or adding a Twibbon, here’s something you can do today which can make a genuine difference to both professional journalists and bloggers: write to the Ministry of Justice as part of their consultation on defamation which has just a few weeks left:

“This consultation seeks views on the ‘multiple publication rule’ under which [people can be sued for every time a web article has been  accessed], and its effects in relation to online archives. The paper considers the arguments for and against the rule and the alternatives of a single publication rule.”

This consultation couldn’t have been published in a more user-unfriendly way. The consultation page consists mainly of a link to a PDF and a Word document (which was clearly written for an online form that was never created, even down to HTML coding).

There is no clear address to send your responses to. You’ll find it on the 4th line of the Word document. It’s defamationandtheinternet@justice.gsi.gov.uk. Don’t worry, I’ll repeat that again at the end of the post.

Here’s what they’re asking (also hereherehereherehere and here), reproduced in a rather easier-to-navigate format and rephrased for slightly easier reading:

  • Question 1. Taking into account the arguments set out in the PDF, should the multiple publication rule be retained? If not, should a single publication rule be introduced? Please give reasons for your answers.
  • Question 2. If the multiple publication rule were to be retained should publishers have to place a notice on an archive once the person responsible has been notified that the material is subject to defamation proceedings?
  • Question 3. If a single publication rule were to be introduced, should it apply to all defamation proceedings, not just those relating to online publications?
  • Question 4. If a single publication rule were introduced,
    1. If the publisher is successfully sued against the original publication of the material, should publishers have to remove or amend material held in other formats under their control?
    2. should there be a provision that, where defamatory material is re-transmitted in a new format, the single publication rule would only protect the previous publisher and not the publisher of the new article?
    3. if neither of these are considered appropriate, how could claimants’ interests be protected?
    4. should the existing ‘voluntary’ obligations to correct inaccurate and misleading material be strengthened? If so, how should this be done?
      Please give reasons for your answers.
  • Question 5.
    • a) If a single publication rule were introduced, do you consider that the approach taken in the United States in respect of what constitutes a new publication of hard copy material would be workable? If not, what changes should be made?
    • b) Should online content that has been modified be regarded as a new publication?
    • c) Are there any other issues that would need to be resolved in establishing a single publication rule? Please give reasons for your answers.
  • Question 6. As an alternative to introducing a single publication rule, should the Defamation Act 1996 be amended to extend the defence of qualified privilege to publications on online archives outside the one year limitation period for the initial publication, unless the publisher refuses or neglects to update the electronic version, on request, with a reasonable letter or statement by the claimant by way of explanation or contradiction? Please give reasons for your answer.
  • Question 7. If the multiple publication rule is retained, should the limitation period remain at one year from the date of publication (with discretion to extend)? If not, what limitation period would be appropriate and why?
  • Question 8.
    • a) If a single publication rule were introduced, should the limitation period of one year run from the date of publication (with discretion to extend) or the date of knowledge (without discretion to extend)? If the latter, should there also be a ten year long-stop from the date of publication?
    • b) If you consider that an alternative approach would be appropriate, what should this be and why?

In case you need further nudging, I’ve started a pledge at PledgeBank – if 10 people sign up to that pledge to write to the MOJ, then I will write too. But not until then. If you need any help let me know.

Once again, the email to send your responses to is defamationandtheinternet@justice.gsi.gov.uk. Please don’t be put off by the exam-style phrasing and intimidating raft of questions. Just answer the questions you feel able to respond to. If you’ve ever complained about the law not catching up to the internet age, this is your chance to do something about it. So do it.

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