With the advent of the internet the potential for defamation has increased dramatically. What one person has written can now be seen by thousands if not millions of people if posted on the right website. This therefore has the potential to have a significant impact on the reputation of an individual or a company. To date any potential action related to the internet has been aimed at Internet service providers however there are risks to all users of the internet who include search engines, website design companies and any other company which might use the internet for a sales or marketing purpose.
The basics of defamation can be found here but what it boils down to is a statement which tends to lower the claimant in the estimation of right-thinking members of society generally. The claimant has to prove that the words are
-identify or refer to the claimant
-are published by the defendant to a third party.
Libel or Slander?
As mentioned in our main page libel and slander are two sides of the same coin. One deals with written and permanent publications (i.e. photograph and images) and is known as libel, whereas slander is publication in transitory form (i.e. spoken word)
It is generally seen that defamatory statements on the internet (i.e. on webpages) is classed as libel. However there is an important case to note; that of Smith v ADVFN Plc and Others; in which the High Court classed chat on an internet bulletin board as more like slander than libel.
This is important to note as for a claim of slander to be successful you need to be able to show that you have suffered financial loss because of the statement.
Why sue the ISP?
As the law currently stands to make a claim for defamation the defendant must be a publisher of the defamatory statement. This includes anyone who has participated in the publication of the statement and encompasses both primary and secondary publishers.
These are individuals/organisations who have direct editorial control over the published statements. This includes authors, editors and publishing houses.
These are individuals/organisations who make the published statements available to third parties. ISP’s are included in this list. They will still be liable even when there is no evidence of fault on their part.
This difference is important with regard to the internet as in many cases the author of the defamatory statement will often not be worth suing for defamation as they will not have the resources to pay out any significant award. So the Claimant will have to look at either the owner of the website (as a primary publisher) or the ISP (as a secondary publisher). As secondary publishers often have a lack of protection then in practice they will be the first targets for any defamation action.
There is still a grey area whether those who have links to other websites could be viewed as secondary publishers. There is an interesting case from the 19th Century in which a man sat across the road from a defamatory sign pointed it out to passers-by. This was viewed to be defamatory and so it could be argued that providers of hyperlinks would be in the same boat. However it is likely it is all going to come down to context and whether the providers of these links link directly to the defamatory material or whether it is just to their home page. This has yet to be argued in court and hence why it is still a grey area.
Search engines have been found by the courts not to be liable with regard to publishing defamatory statements after an individual inputs terms into a search engine. This is because the search engine has no say in what search terms are being inputted and have very little power in stopping certain results being transmitted following those search terms.
Internet Defamation and Limitation periods
Currently the law has it that the limitation period for defamation claims is one year from the date of publication and the Courts do have the discretion to extend the limitation period in circumstances which would be equitable to do so. However a fresh cause of action (and thus a reset of the limitation period) starts each time the statement is published.
So with regard to the internet it is very easy to republish a statement with vast swathes of documents being stored in archives and being able to be published anew at a moments notice.
Defamation Act 2013 and the Limitation Period
There is however changes coming with the Defamation Act 2013. This new act will create a new single publication rule. This rule means that the Claimant will not be able to bring a claim after the one year limitation period unless it is published by a new publisher or the manner of publication is materially different.
There is a defence to protect intermediaries who could potentially be liable due to publishing on the internet. This was previously known as the innocent dissemination defence.
They will be able to use this defence if they can show that:
-They were not the author, editor or publisher
-They took reasonable care in relation to its publication
-They did not know and had no reason to believe, that what they did caused or contributed to the publication of the defamatory statement.
Publisher in this instance means a commercial publisher, someone whose business it is to issue material to the public. You will not be considered a publisher if you are involved in making copies of, distributing or selling any electronic medium in which the statement is recorded nor will you be considered if you are an operator or provider of a system by which the statement is made available to others.
ISP’s will generally fall into this category however the issue of reasonable care of publication and lack of knowledge does rear its head in these situations.
Notice and Take-Down procedures
For ISP’s to make use of the intermediaries’ defence they need to remove allegedly defamatory postings as soon as they are given notice of them. This is known as notice and take down. For an ISP to be able to properly assess the other potential defences available to themselves they need to remove access to the alleged defamatory posting for the time being.
As long as the ISP does not exert some editorial control over what is published on its server then it is likely to publish the first hurdle which is not to be classed as an author, editor or publisher.
They then need to actually react to complaints and monitor to some extent what is going on in their servers as otherwise it could potentially be argued that they have not taken reasonable care in relation to the publication. Therefore it is in the best interest of the ISP to take down the website/publication which is potentially defamatory as soon as is reasonably practicable otherwise they are likely to face a significant cost.
Once the ISP has received notice of potentially defamatory material the question then is to what extent does the ISP have to go to to show that reasonable care has been exercised and how will a court decide if they have contributed to the publication. There are certain key things that need to be considered first.
What notice has been supplied:
One grey area that has yet to be put to task in the courts is what actually constitutes notice. Is it from when the notice arrives or is it from when it is read. For example if notice is emailed to the ISP on a Saturday night but the message isn’t read for some reason until the monday morning would notice begin from when it was emailed on the Saturday night and the day in between is them ignoring notice or would it be from when it was read on monday morning.
You might also question what exactly is the notice requesting. Is it requesting for the entire website to be taken down, or perhaps just the individual articles that have been published. Does the complaint have to be specific enough to cover just the publication?
How quickly do they have to react:
The problem with the internet is that things can happen very quickly and a lot of people can read the publications in a very short space of time. So by the time the ISP get round to dealing with the defamatory publication the damage could well have been done already. Again this is still up for debate in the courts but things to consider will be if a newspapers’ website fails to put a warning that there has been notice given against one of it’s articles might mean it can’t benefit from certain defences.
Or if certain websites get a set number of hits per day then they might be expected to act a lot quicker as the damage could be significantly greater.
This is one of those situations where context is everything. As with the law of tort the court will consider the reasonableness of the activity of the ISP or intermediary.
It is evidently clear from this page that with the advent of the internet, the world wide web is a dangerous place for trying to maintain your reputation. One ill advised statement by an individual could lead to millions of people reading it and potentially damaging your reputation beyond repair.
Don’t lose hope though as there is action you can take. Fortunately it will generally be classed as libel and as such you don’t need to prove financial damages from this statement and currently if you can’t go after the initial publisher of the comment you could potentially go after the ISP or the website owners themselves. Please be aware though that they may be able to defend these claims if they stand at arms lengths.
On the other hand if you are a website owner or ISP then don’t fret if you suddenly receive notice that there is something defamatory on your page or server that you host. Just act reasonably and take it down whilst you investigate or give notice that it is being investigated and you might be able to escape any further action.
If you are a victim of defamation on the internet or are an ISP or website owner potentially being sued please do not hesitate to contact us on 0800 014 8727 where one of our friendly team members will be able to discuss your situation and see if it is something we can assist with.