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Message Board Law: 1 – Libel

By on Mar 29, 2005 in Data Protection Act, internet libel, law, online community | 3 comments

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Defamation law, which essentially protects people and companies from damage to their reputation caused by untrue statements (libel = publication/broadcast; slander = spoken) in the UK is often said to be more strict than in other countries. For more information on UK defamation law as it applies to the media see http://www.media-solicitors.co.uk/ and, if you are interested in UK law and blogging, see http://www.bigblogcompany.net/index.php/weblog/category/C20/

The main case sited by online community professionals in the UK is Godfrey v Demon Internet. The following two Guardian articles, both published on 18 December 2002, explain the case.

Report backs ISP libel law claims by Owen Gibson: http://media.guardian.co.uk/medialaw/story/0,11614,862227,00.html

Internet libel laws ‘stifling freedom of expression’  by Clare Dyer: http://media.guardian.co.uk/medialaw/story/0,11614,862088,00.html

A more recent case in Scotland was settled out of court so doesn’t set a legal precedent but is still informative:

Payout for newspaper online talkboard libel, by Claire Cozen, 9/9/04, The Guardian (see http://media.guardian.co.uk/medialaw/story/0,11614,1301056,00.html

It’s not internet related, but the Times has been sued for libel by the Conservatives campaign director.

In what I originally (and mistakenly – thanks George for the correction and a few more links) blogged as an American case but which was, in fact, a UK case, the Motley Fool website was compelled by court order to reveal the registration details of a user who posted libellous comments on a UK message board at the site. According to Lucy Sherriff, in an article for The Register,

Benjamin was unmasked by a court order compelling Motley Fool to reveal the details it held on the poster known as "analyser71". The IP address associated with his postings was then traced back to a computer at his then employers, Kyte Fund Management.

The Motley Fool case, thought to be the first where a user posting anonymously has been successfully sued for damages in the UK, has also been covered by The Guardian and The Sunday Times. Motley Fool has published it’s own press release about the case.

Apple, similarly, has compelled the US courts to force blog service providers to reveal the registration details of users and has used this information to force bloggers to reveal the sources of "insider" information at Apple.

In the UK we have the protection of the Data Protection Act which means, without a court order, ISP’s and internet publishers CAN’T reveal personal registration information without a court order having been issued forcing them to do so. But it’s likely (as was seen in the Motley Fool case) that the courts would supply such an order if a claimant in a civil libel case requested one. What seems unclear, based on the Demon Internet case, is whether ISP’s and internet publishers who were notified of libellous message board posts, and who took expedient action to remove those posts (Demon didn’t, and was criticised in the judgement for this), could still be found guilty under UK libel law.

In Reynolds v Times Newspapers Ltd (1999) . In the his judgement, Lord Nichols of Birkenhead outlines the current position of UK defamation law then proceeds to list ten considerations which might help publishers to form a defense. This has become known as the "Reynolds Defense". Lord Nichols writes:

Depending on the circumstances, the matters to be taken into account include the following. The comments are illustrative only.

1. The seriousness of the allegation. The more serious the charge, the more the public is misinformed and the individual harmed, if the allegation is not true.
2. The nature of the information, and the extent to which the subject-matter is a matter of public concern.
3. The source of the information. Some informants have no direct knowledge of the events. Some have their own axes to grind, or are being paid for their stories.
4. The steps taken to verify the information.
5. The status of the information. The allegation may have already been the subject of an investigation which commands respect.
6. The urgency of the matter. News is often a perishable commodity.
7. Whether comment was sought from the plaintiff. He may have information others do not possess or have not disclosed. An approach to the plaintiff will not always be necessary.
8. Whether the article contained the gist of the plaintiff’s side of the story.
9. The tone of the article. A newspaper can raise queries or call for an investigation. It need not adopt allegations as statements of fact.
10. The circumstances of the publication, including the timing.

(PS. I’m not a lawyer. The information above is published to help readers understand the current issues within UK libel law, not to provide legal advice or advice which can be acted upon. Please consult a legal professional.)
 

31 March 2005: Miranda Mowbray has written an excellent paper discussing the "Philosphically Based Limitations to Freedom of Speech in Virtual Communities" that some readers might find to be useful background for this blog entry.