Defamation [and the definition of publication]

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.  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.

There are essentially three defences 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 defence 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?

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.

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.

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…

7 Replies to “Defamation [and the definition of publication]”

  1. I agree with you, though I also feel that on important issues; smart/educated people will verify facts from other sources on the net. It is both the beauty and the curse of the net to be able to say whatever you want – but there are always ways to verify news/slander.

  2. The overarching problem is that with website comments it’s very easy to hide behind aliases and start attacking people and their views. Most sites with ‘lively’ comments tend to suffer from personal attacks, and that’s not really very good for the conversation and society.

    The reason that Seth Godin famously doesn’t allow comments on his site is that he cannot validate the origin of the comment.

    I think if we could, then the quality of the commentariat would increase vastly from these horrid personal attacks. A solid solution anyone?

  3. I think that Richard has nailed it. When one is anonymous on the web then one is free to say anything at all. In the last month I have gone through all my on line identities and changed the tags to my own name. Makes me think more before I type anything (one of my identities was ‘ThinkB4UType). The bright light of day is the best cure for this illness.

    1. I agree… and I disagree. I think that there are some people – dare I say it, ‘of an age’, that will think twice before they post something if they know that it will be linked directly to them. I also believe that there are many that believe they have the right to say what they want and any attempt to temper this is censorship. Another contributing factor is that there are rarely ever any consequences: people don’t sue because it’s not worth it and the cost of a suit is ridiculously high for the perceived ‘reward’ of having a defamatory statement corrected. Often these things blew over very quickly and were forgotten about.

      My concern is that as the web becomes an increasingly important tool for everybody – and a reputation is judged more on what’s published online than anything else, there needs to be a way for people who find themselves the subject of defamatory statements to take action. Fair comment is often used incorrectly – it’s fair comment if I don’t like a burger or the service in a restaurant. But is it fair comment if I accuse one of the servers of stealing when I see him removing money [tips] from the till? A reasonable person could draw that conclusion if they saw somebody removing money from the till… when the facts are known, however, the accusation is plain wrong.

      Fair comment is only fair if it’s based on the facts. I think we’ll see this as an increasingly important issue as we rely more and more on the web for information about individuals and businesses – I wouldn’t be surprised if we see an increasing number of prosecutions of online media outlets in the next 12 – 18 months.

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