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March 14 2011


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.]

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