Keele University issued a warning via e-mail to its students in May that any defamatory messages about staff on various online social networking sites such as Facebook might result in disciplinary action. Furthermore, the university warned that students might face legal action for defamation and harassment from the members of staff to whom the comments related. According to the BBC, a statement issued by the university said: "A number of students have already been written to by the university warning them of the unacceptable nature of their comments on Facebook and that any further activity of a similar nature will be dealt with severely".

A legal precedent in respect of postings on social networking sites was set in the UK in 2002 when Jim Murray, a former teacher, successfully sued a former pupil for libellous claims on the website Friends Reunited. Last year Michael Keith-Smith, a member of the UK Independence Party successfully claimed damages against Tracey Williams for libellous comments that she posted on an internet discussion board.

It is not only individuals who face the risk of legal action for defamatory postings on websites, universities and employers could find that they increasingly have to respond to postings on social networking sites such as Facebook and MySpace as the popularity of such sites continues to grow. Internet service providers ("ISPs") may also find themselves increasingly in the firing line from claimants commencing multiple actions.

Universities and employers

Aside from the obvious networking benefits of social sites, concern has been expressed that the reputations of companies and universities could be tarnished by inappropriate online behaviour by staff and students. Other concerns to businesses include the amount of time wasted by employees as they navigate social networking sites during working hours and the risk of confidential information and trade secrets being leaked via social networks.

Action that could be taken to reduce the inherent risks

In response to such concerns, some corporations have banned staff from accessing social sites at work. Other companies and universities have adopted a less severe approach, deciding instead to issue policies on the use of networking sites setting out what is and is not acceptable. This approach has the advantage of allowing the benefits of such sites, particularly the networking aspects to continue, whilst clearly setting out the expectations of companies and universities and the consequences of failing to meet the standards set.

Internet service providers ("ISPs")

Difficulties inherent in identifying the individuals responsible for making defamatory statements and the lack of funds of many individuals to pay damages mean that ISPs may face more legal claims in the future. In a case last year, for example, a claimant, Mr Bunt, commenced proceedings against the ISPs AOL, BT and Tiscali in respect of defamatory statements published on internet notice boards. The action, however, was dismissed as the ISPs successfully relied on the defence of "innocent dissemination" under the Defamation Act 1996 (the "Act").

Defences available and actions that could be taken to reduce such risks

ISPs can use the defence of "innocent dissemination" if they can prove that:

  • They were not the author, editor or publisher of the statement complained of;
  • They took reasonable care in relation to its publication; and
  • They did not know and had no reason to believe that their actions caused or contributed to publication of the defamatory statement.

Additionally, ISPs can seek protection under the Electronic Commerce (EC Directive) Regulations 2002 where they:

  • Act as a mere conduit in order to transmit information on behalf of a recipient of a service;
  • Cache information on their servers for the sole purpose of facilitating access; or
  • Host material at the request of a recipient of a service where they do not have actual knowledge of any illegal activity.

ISPs may, however, still find themselves in a difficult position. If they decide not to monitor the content of sites they may fall foul of the requirement to take "reasonable care" under the Act. If, however, they exert some editorial control over their sites they risk being classed as the "author, editor or publisher" under the Act. ISPs can take a number of practical steps to minimise their liability for defamation on the internet including:

  • Implementing a policy setting out detailed procedures for handling complaints and requests to remove alleged defamatory statements;
  • Removing alleged defamatory statements immediately after receiving a complaint; and
  • Ensuring that sufficient insurance is in place to cover claims and where possible obtaining an indemnity from the owner of the website in respect of any defamation-related litigation.

This article provides a brief summary of a specialised area of law. Specialist legal advice should always be sought which relates to your specific circumstances.