Cyberlaw and Cybersociety Assignment

This essay is concerned with the area of Internet defamation. In general, the purpose of defamation is to protect reputations, not injury to people's feelings: "A defamatory statement is one which, when published, tends to lower a person in the esteem of right-thinking members of society generally; or which tends to make them shun or avoid that person"1 This essay will take into consideration the specific issues and problems that arise in relation to Internet defamation and the legal responses. If a statement is found to be defamatory, it is categorised as either libel or slander.

A libellous statement is one which is of a relatively permanent nature. This includes broadcasts and theatrical productions, as well as statues and photographs. Libel is traditionally more serious than slander, and there is no need to prove special damage in court. If the case is successful, any damages awarded to the claimant are often much greater than those awarded in cases of slander. Slanderous statements are in a more transient form and would be found in, for example, conversations. Most cases require that what has been said, as well as special damage, must be proved in court.

To prove special damage, it must be shown that the claimant has suffered some financial loss as a consequence of what has been said about them. Legal action for defamation can only come from an individual or a company, not from a Local Authority. If action is to be taken with regard to a defamatory statement, there is a requirement for publication. That is that the message must be sent to a third party. The degree, to which a person's reputation may be damaged, largely depends on the audience. If the audience is more specialised, then the statement would be more chance of the statement being damaging.

Defamation over the Internet can take place in several forms. The most common of these being via e-mail, on websites and on bulletin boards. Defamatory statements have the potential of being sent to a wide audience via each of these mediums. There have been many cases which are concerned with defamation over the Internet. The case of Rindos v Hardwick2 dealt with a libellous statement made by one academic which strongly questioned the competence of one of his colleagues, and suggested misconduct on his behalf.

It was decided that these statements were indeed of a defamatory nature, and $40,000 in damages was awarded to the claimant. With regard to who is liable for the publication of a defamatory statement, it is generally thought to be the author along with all other people involved. For instance, the editor, publisher, printer and distributor. The claimant is most likely to, as a general rule, sue whoever has the most money. When a defamatory statement appears on the Internet, however, it must be established whether the editor or the publisher should be held as being responsible.

This is illustrated in the case of Cubby v CompuServe Inc. The case was concerned with a message which appeared in a local newsgroup. CompuServe had employed a third party to edit and post messages on the website. The defendants argued that this situation was the same as a newsagent who has no control over the content of the newspapers they sell. The decision was reached that CompuServe were not liable as they did not know of, and did not have reason to know of, the defamatory statement. The judge commented that it was probably impossible to police every site at all times.

Internet Service Providers (ISPs) are liable only if they come across the defamatory messages. In Stratton Oakmont Inc. v Prodigy Services Co. 4 libellous statements were made on Prodigy Services' bulletin board. Claims were made in these statements that the claimant had "committed fraudulent acts in relation to a public offering of company stocks"5. The court ruled that Prodigy Services Co. were the publishers, not distributors, and so were liable for the defamatory remarks. Legal action can also be taken if the claimant believes that innuendo plays a role in a defamatory comment.

It is up to the claimant, however, to prove innuendo in court. This is dealt with in the Tolley v Fry 6 case. At the time, Fry was a chocolate manufacturer and Tolley was a well-known amateur golfer. Fry made an advert which used a picture of Tolley swinging his golf club. Alongside the picture was the caption, "Our chocolate is as good as his golf". Tolley sued the chocolate manufacturer as he thought it would damage his reputation as an amateur golfer. He had to prove innuendo in court by asking other people to appear as witnesses.

The court ruled that although members of the general public might not see a fault with this, amateur sportsmen might think that Tolley had been accepting money from the defendant for advertising their product, thus damaging his reputation. In the United Kingdom, defamation occurs with each publication of a damaging statement. This is referred to as the 'multiple publication rule'. There is one condition of claiming damages in the United Kingdom, and this is that legal action must commence within one year of the defamatory statement being published.

Exceptions to the rule may only be made at the court's discretion. This could be, for example, due to the claimant not being aware of the defamatory remarks until some time after they were published. Another limitation upon action taken in the United Kingdom in relation to defamation is the question of jurisdiction. It is generally thought that legal action should take place in the country where the defamatory statement was published. This matter is dealt with in the case of Berezovsky v Michaels [2000]7 .

An article which appeared in a magazine published in the United States claimed that the claimants, who were Russian citizens, were involved in organised crime in Russia. 785,000 copies of the magazine were circulated in the United States, around 2000 in England and only 13 in Russia. The article also appeared on the defendant's Internet site, and it was agreed that the article had been read by around 6000 in England. The claimants held a reputation in England and the defamatory statement had reached a wide audience in England.

The claimants were therefore allowed to take legal action in England, even though the defendant was American. The principle behind this case would also apply to the Internet. Legal action should be taken in the country, from which, the message originated. It is, however, more difficult to establish where a message on the Internet was posted from, as opposed to finding out where a magazine was printed. There are several defences against defamation. These include proving that the statement is truthful, making of a fair comment, offer to make amends, and either absolute or qualified privilege.

An offer to make amends takes place when one party offers to make a public apology for the defamatory statement that had previously been made. Examples of these are often found in newspapers. Absolute privilege is: "The defence that a statement cannot be made the subject of an action for defamation because it was made in Parliament, in papers ordered to be published by either House of Parliament, in judicial proceedings or a fair and accurate newspaper or broadcast report of judicial proceedings, or in an official communication between certain officers of state.  

An example of this exemption would be the daily reports from Parliamentary debates which are posted on the Hansard website9. Qualified privilege, on the other hand, is the idea that a statement cannot be viewed as being defamatory because: "... it was made on a privileged occasion and was not made maliciously... qualified privilege covers statements made fairly in situations in which there is a legal or moral obligation to give the information and the person to whom it s given has a corresponding duty or interest to receive it and when someone is acting in defence of his own property or reputation...also covers fair and accurate reports of public meetings and various other public proceedings".

This is illustrated in the case of Alexander v Arts Council of Wales. The claimant sued for slander and libel as a result of a press briefing which had been given by the second defendant. The claimant said that the comments which had been made were malicious. The defendants pleaded that the publication was made under qualified privilege.

The court decided that there was no evidence of malice on behalf of the defendants and approved of their argument. In conclusion, the key issues of Internet defamation are that the Internet Service Providers must know of the defamatory messages in order for them to be liable, and that the universal nature of the Internet makes policing it extremely difficult. The fact that ISPs allow anonymous access means that they are making their own job even harder.