Gardner Leader

Chris Felton, Partner in the Dispute Resolution Team at Gardner Leader Solicitors in Newbury comments on the increasing risks of defamation on the internet.

The comments you wish you had never written.  The rants and rages on blogs, bulletin boards and social networking sites.  Or more serious, the threats, lies, obscenities and offending material flooding online!  These are all factors which have fundamentally changed the landscape of defamation law, and particularly libel (the written form of defamation). It is also a very real issue for businesses, whose reputation and brand can be damaged by careless comments on blogs and social networks. This article looks at the options open to businesses facing these issues.

The law recognises the right of every person and business to possess a good reputation.  The Defamation Act 1996 offers statutory protection against the publication of an untrue statement which tends to lower a person in the estimation of reasonable people.

The first action that any business will want to take is to ensure that any comments are removed immediately. Comments posted on public and online forums can reach a wide audience within a very short time. However, the person who posted the comment may have done so anonymously or may be difficult to track down. In the online world, the service provider who is hosting or storing the comment may also be liable unless they act quickly (and this generally means within 24 hours of becoming aware of an issue) to remove the offending material.

The next consideration is whether the business can claim damages and if so, how much? Again, if the comment has not been removed quickly, the hosting provider may be liable for these damages, which can be useful if the person who has published the comment has no assets or cannot be found. A claim may alternatively be made against the person or company who posted a comment.  Indeed, since 2006, the position has changed.  Mr. Smith a former UKIP candidate successfully brought a claim against Ms Williams for derogatory comments about the Iraq War posted on a Yahoo discussion board.  Mr. Smith obtained a court order forcing Yahoo to reveal Ms Williams’ identity and she was ordered to pay £10,000 in damages.

A major factor in establishing the amount of damages will be the audience who had access to the content and also whether the comment was malicious (i.e. there was intent to cause harm). Comments can be made maliciously both by individuals and by companies.

Finally, there are defences available to those accused of making defamatory comments. For example, if the comment is true or expresses fair comment, then it will not be actionable. Also bear in mind the E-Commerce Directive 2002 under which ISPs can enjoy immunity (subject to conditions) if they only act as a “conduit” or pipeline for defamatory comments.