Defamation Law Part I - February 2009

The internet has radically changed the nature of defamation law.  While it was once a specialised subject left to media lawyers it is now a topic on which most internet lawyers have to advise.  Internet defamation is, however, dramatically different from more traditional defamation cases. 

Comments made on the internet can be instantly and indefinitely accessible to millions of people around the world. Even if the original site where the comment was posted has disappeared the comments may remain cached in a search engine or have been repeated on other websites or blogs.  On the other hand comments made in a newspaper or magazine have a more limited readership and more likely to be forgotten in a few days. 
As there is so much content on the internet much of which has questionable veracity, there is the question whether readers of the defamatory post actually believe it.  Whereas if defamatory comments are carried in print newspapers they are far more significant as print media is regulated and publication requirements are more rigorous. So all these differences between online and offline defamation makes it difficult to calculate the actual damage caused by on online comments.

Change in the role of publisher

One main difference between internet defamation cases and more traditional forms is that the identity of the “publisher” has changed. In the past it was often members of the press or large publications. On the internet the publisher could be virtually anybody anywhere around the world. Publication can occur in a variety of places as well on blogs, websites, emails, social networking sites and message boards. Courts have found that posting in all of these places meets the requirement of broadcasting of a defamatory comment.

Defamation on the internet has become a huge problem for both companies and individuals alike. One new problem that several companies have had to face includes internet hate campaigns.  Affected companies have found it extremely difficult and expensive to stop these.  Another difficulty on the web is that it can be difficult to determine who is behind a particular website or forum or blog comment on the internet.

There has been a lot of controversy about tracing individuals through ISPs.  While tracing computers is possible, it is less easy to trace users.  So if a defamer has used a public computer and an email with false registration details it can be difficult to find out who was the culprit.   The other issue is that the individual making the defamatory comment may have no assets and therefore not be worth suing. And if the defamer is located in another country the plaintiff would have the very expensive task of litigating in a foreign country which may have very different laws regarding defamation and the internet.

Non contentious approaches

Increasingly defamation on the web calls for non contentious legal skills, such as an understanding of the internet and what is or is not possible in terms of removing objectionable posts.  The Usmanov matter is a salutary lesson as to what NOT to do on the web.

Alsher Usmanov is the well-known Ukrainian billionaire owner of the Arsenal Football Club. The ex-ambassador from the United Kingdom to the Ukraine, Craig Murray, had written a book as well as a blog on the alleged criminal activities of Usmanov in his rise to power. Usmanov hired the well know libel firm Shillings to try to stop Murray. Since 2007 repeated attempts have been made by the firm to get Mr. Murray's blog taken down permanently.

A particularly noteworthy attempt came in September 2007 after one blog post in particular was picked up by several Arsenal and political websites. Shillings sent cease and desist letters to Murray and the host of his website, Fasthost. Fasthost contacted the site administrator of Murray's blog who refused to take the site down. Due to this refusal Fasthost pulled the plug on all of the administrator's sites which included the website of Boris Johnson and the website of the London Bach Society even though neither website had any content on this matter.

The problem with this approach is it failed to get Murray's site down for good and actually made things worse since their actions ensured the matter received even more press attention than the original post. So, defamation and protecting reputations online goes much further than engaging in defamation, privacy or copyright proceedings on behalf of famous brands and personalities.  As has been indicated in this article, the approach rarely involves litigious means, although it is useful to have an understanding of when a cease and desist letter will work and when it won’t.  Despite the difficulties with online defamation there are still some success stories out there which we will discuss in part 2.