Defamation [and the legal definition of ‘publication’]

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Disclaimer: this post is not intended to be legal advice not should decisions be taken based on it.  This post draws on my understanding of defamation laws from study of it in the UK and having been a working broadcast journalist for almost a decade.

 

I’m seeing a worrying trend online lately.  It’s especially worrying when so much of what we do these days is based on reputation – and the primary source of information for both individuals is what we read online.

I’m talking about defamation of character.  From what I’ve seen recently I’m worried the Internet is becoming a place where people think they have the right to say what they want about both people and businesses, without having to provide any proof… and have no awareness of their responsibilities to ensure that they do not libel [or slander] individuals or businesses.  It’s perhaps not surprising given that many of the resources online explaining what defamation of character is are unclear, but while individuals could perhaps be forgiven – although ignorance isn’t a defence against a libel – what is more worrying is that an increasing number of sites that claim to monitor forums and blogs for inappropriate or defamatory content seem to have no awareness of the laws either.

I was going to post a link to the Wikipedia entry on Defamation but, having read it, it’s more likely to confuse than inform.  So, defamation is, in essence, the publication of a statement that is false and has a negative impact on somebody’s reputation or standing. The legal definition is more complex, so I’m paraphrasing.  Publication in defamation terms is TWO PEOPLE.  One of those can be the person about which the statement is made.

I want to make it clear that I’m not suggesting that the Internet is censored – I’m all for an open web where people have freedom of speech – but that shouldn’t be at the expense of adhering to basic laws.

DEFENSES

There are essentially three defenses open to somebody that makes a defamatory statement:

  1. It’s the truth
  2. It is in the public interest that people are made aware of something – even if the statement is proven to be factually untrue.

Another defense that can be used in some instances is that it’s fair comment. Could a reasonable person come to the same conclusion based on the facts presented – even if there is no foundation to the claim and it is defamatory.

Prejudice and Malice [there are some jurisdictions, like the UK Houses of Parliament that are not bound by defamation laws].

This is where many online forums just don’t get it in my opinion.

Fair comment [the assertion that a reasonable person could form that opinion] seems to be the default response by many forums, blogs and online media outlets.  While many sites include a term in their usage policies that makes it clear that defamatory statements constitute a breach of their policies and state that users’ opinions are not necessarily those of the publisher. [It’s worth pointing out that for defamation to have taken place it has to be ‘published’. The legal definition of publishing is that two people have seen it. One can be the person accused]. They then try to hide behind this, hoping that the defamed won’t know that legally if you publish a libel you’re as guilty as the person making the original statement.  Ignorance or the fact that somebody else said it first is not a legal defence. This strategy is, in my opinion, a dangerous one!

The problem with the ‘fair comment’ defence is that the evidence provided to support it is often flawed: in many cases it’s not reasonably researched, not based on anything concrete, and is often fuelled by information provided by other posters to  a site or forum [which is often inaccurate, badly [or un-]researched information or just an individual’s opinion].  Working on that basis a reasonable person could be persuaded to believe almost anything.

OPINIONS ARE FINE – AS LONG AS THEY AREN’T DEFAMATORY

Everybody is entitled to their opinion – if you don’t like something you’re perfectly entitled to voice it.  What you can’t do, as far as my interpretation of the law is concerned, is to accuse somebody of committing a criminal offence or something that damages their reputation, when there is no evidence to support it. Despite evidence to the contrary, I still believe that you should be innocent until proved guilty – and by proof, I mean in a court of law, not because it’s a conclusion that somebody has come to because they’re annoyed with poor service, or the quality of a product.

I’m all for freedom of speech and fair comment… but what I disagree with is flagrant abuse of the defamation laws online, couched as fair comment.  It’s time this matter was addressed, or it’ll be the Internet’s reputation that will be permanently ruined.

Update, Nov 17 2012: The events of the last few days have made me think I should update this post.  I wrote a post in which I suggested that somebody who claims to be an expert in “social, viral and authentic marketing” may be a false expert and an editor – who admits that they aren’t a lawyer – feels the statement could be defamatory.  Having read my post on defamation again it’s worth pointing out that in libel cases the burden of proof is on the complainant [the libelled] to prove that the claims made are false.  In order to do that, I’d argue, there has to be a clear and commonly accepted set of terms of reference.

In the comment on my post the Editor uses a libel case in which there is an accusation against an individual of accepting ‘backhanders’ – a criminal offence.  She claims that she believes [although, remember she’s not an expert] that my claims are more defamatory than  those of a criminal offence.  I beg to differ…