Internet defamation: slander or libel?

How far does freedom of expression extend online and how effective is the tort of defamation to restrict it? Will blogs, Facebook conversations or chatrooms which express derogatory views soon be liable for defamation? According to Mr Justice Eady’s recent ruling in Smith v ADVFN PLC, bulletin board users’ comments may be defamatory, but are more akin to slander than libel due to their conversational nature.

The controversial discussions took place on the ADVFN financial website regarding Nigel Smith’s role acting in the interests of shareholders at Langbar International while the company was investigated for serious fraud. Smith claimed that he “suffered a sustained campaign of vilification and defamation”, but failed to win damages for libel from ADVFN and 37 other accused online posters. In turn, they accused him of being a “bulletin board bully”.

A defamatory statement is one which is published to a third party and can be proven to affect the reputation of a claimant negatively. Defamation is divided between libel and slander, the former usually being (in relation to comments) published in a permanent form. For example, in 2004 Justice Eady ordered The Daily Telegraph to pay Member of Parliament George Galloway damages and costs for printing “seriously defamatory” allegations that he had taken money from Iraqi aid programmes for his own personal benefit. In contrast, slander is usually in temporary or oral form and claimants have the extra burden of proving that the material caused special damage. The defences to both slander and libel are truth, privilege or fair comment on a matter of public interest without malicious intent.

While the printed word can be clearly defined as libel, the situation regarding the Internet is less clear due to its instant, worldwide and diverse nature. Defamatory material may be contained in online newspapers or magazines, emails, bulletin boards, chatrooms, blogs or instant messengers. Thus, the question of whether a comment is libel or slander is complicated for although online comments may be abusive, personal and accusatory, their impact can be difficult to quantify.

Furthermore, in 1999 Godfrey v Demon Internet Ltd established the responsibility of internet service providers (ISPs) under English law to regulate their message boards, including the removal of defamatory material once they are aware of it, without contravening the Human Rights Act guarantee of the freedom of speech.

Emails are a more permanent form of communication, and in 2000 Takenaka v Frankl (October 11 2000) became the first UK ruling involving anonymous email libel. As awareness of the risks of defamation in email has grown, organizations have implemented information technology usage policies guiding staff to be more careful in their use of email and to adopt a more formal style of writing, moving away from the chatty nature of conversations.

The definition is less clear for other modern forms of internet communication, but Justice Eady’s recent ruling provides guidance on how defamation laws apply to bulletin board messages. It may come as a surprise that in this case he ruled in favour of freedom of expression, given his tendency to restrict the media – a trend which has earned him a reputation for almost creating his own privacy law. For example, according to Justice Eady, bulletin board posts are “uninhibited, casual and ill thought-out”, similar to “people chatting in a bar”, and are thus not libellous. Such comments are normally as a result of honestly held opinions, although malicious comments will defeat the defence of fair comment: “Even if they reached their conclusions in haste, or on incomplete information, or irrationally, the defence would still avail them.”

In a similar case, Richard Parkes QC (as a deputy judge in this case, but who subsequently represented ADVFN) ruled that despite Sheffield Wednesday Football Club being the target of defamatory comments on an internet forum, the views expressed were too “trivial” to justify action against the posters. Therefore, according to both Parkes and Eady internet bulletin boards should not be taken too seriously and require ‘give and take’ on the part of the reader.

More cases of internet defamation are expected as new online technologies become ever more popular. The ease with which unverifiable information can be posted online was displayed when social networking site Facebook recently became the arena for a successful libel and privacy case where a user set up a false profile and group about a former friend. Richard Parkes QC, again sitting as deputy judge, awarded damages for libel although he stated that these were “not at the top end of the scale”.

Blogs are perhaps next in the firing line for libellous action. Where chat forums and instant messengers are conversational-like bulletin boards, blogs are more planned, permanent and thus similar to online articles. The situation is complicated where readers can post comments to a blog. Liability for defamatory comments will start with the comment poster, but could quickly include the blogger and the ISP.

These complications are exacerbated by the presence of different laws surrounding online defamation in each country. For example, under US law ISPs are not obliged to remove material even if it is defamatory and they are requested to do so, as seen when Canadian company Global Royalties lost a US court ruling to Arizona’s Xcentric Ventures. More detailed online defamation laws, as well as an international agreement for cross-jurisdictional issues, will soon be necessary to deal with the legal challenges of the modern Internet.

First Published in World Media Law Report, September 2008