Have you been the victim of Cyber defamation? You can contact us to see if you may have a claim for compensation.
1. What is expression and defamation?
It is accepted in a democratic society that individuals have a right to express their own views and preferences. The Internet offers extensive potential for individuals and organisations to do this.
‘Defamation’, on the other hand, involves an abuse of freedom of expression whereby statements that may have a harmful impact on a person’s reputation are published.
Obviously it is important to ensure that unfounded claims should not be allowed to damage a person’s reputation, but it is also important for the law to balance such protections with the rights to freedom of expression that are a critical element of democratic societies. The issue of defamation has become a central issue in the use of the ‘Net because some corporations now use the threat of a legal action for defamation as a means to restrict the actions of groups or individuals campaigning against their activities. (See case study examples on notice and takedown).
2. How are defamation and freedom of expression covered by the law?
In the UK The Human Rights Act 1998 implements the European Convention on Human Rights (ECHR). Under the Convention:
The right to respect for an individual’s private and family life, home and correspondence is guaranteed under Article 8;
Rights of freedom of thought and expression are covered by Article 9;
Rights to freedom of expression and association are guaranteed under Articles 10 and 11.
These rights may have limitations put on them ‘as prescribed by law’ and which are ‘necessary in a democratic society’. The qualifications to these rights are the subject of continuing legal debate and case law.
The Defamation Act 1996 is the main UK law governing defamation. A defamatory statement can be published in:
Verbal form, when it is classed as slander – because only the spoken word is involved, slander can often be difficult to prove; or
Written form, when is classed as libel – a case for libel is easier to bring because evidence can be documented.
Material may have the potential to defame someone if:
The statement made would make an ordinary person modify their opinions of a person as a result of hearing or reading the statement.
Under UK law it is possible to defame corporations as well as individuals.
Defamation actions in relation to the Internet have so far involved libel. Libel must be widely ‘published’. You could libel someone using electronic networks by:
Sending an email, or an email attachment, where that email is widely posted or forwarded;
Making material available via a web page;
Posting to an email list or newsgroup; or
Streaming audio or video via the Net.
Anyone who actively transmits defamatory material is liable as part of any legal action. Most standard contracts for Internet services include conditions relating to defamation.
The 1996 Act creates a category of ‘special publisher’, where;
the material transmitted is passed automatically by electronic systems without their involvement; or
they are only the suppliers of the equipment or systems that enable publishing or distribution.
The Act also outlines the framework for prosecuting cases of alleged defamation, as well as various defences for anyone prosecuted along with the author of the material. To successfully defend against prosecution you must show that:
You were not the author, editor or publisher of the material;
That you had taken ‘reasonable care’ to prevent the publication of any defamatory material; and
That you did not know, or had reason to believe, that the material was defamatory, and that your transmission did not contribute to the construction of the defamatory material; or
The reputation of the ‘defamed’ person is such that the material could not conceivably change the average person’s views on them.
The current legal framework will probably be revised as part of new legislation for electronic commerce and electronic media.
If a person discovers that material that is damaging to their reputation is about to be disclosed, they could bring an injunction to prevent publication (on the basis of the damage it would cause, rather than on grounds of defamation). If the alleged defamatory material is already in the public domain, an injunction could be requested to force the removal or recall of the material before the case is heard.
3. How do defamation laws threaten civil liberties?
Companies and individuals may threaten a defamation action or use an injunction to silence their critics or campaigners. An injunction can be instantly actioned and prosecuted, regardless of whether it is justifiable. Given this, and the difficulty of fighting actions through the higher courts, some corporations have used injunctions rather than defamation actions to tackle problems with groups or campaigns.
Internet service providers, like other publishers, will not normally defend a claim of defamation. Rather than risk the costs of a legal action, many will simply remove the allegedly offensive material and undertake not to allow its future publication.
Filtering and blocking systems can be used in computers and Internet servers as a much simpler, and more effective, means for controlling access to material:
Filtering sifts packets of data or messages as they move across computer networks and eliminating those containing ‘undesirable’ material; and
Blocking prevents access to whole areas of the Internet based upon an address or location.
Concerns have been raised about the use of blocking and filtering software and the impact on freedom of expression. In the US, where such systems are widely used, a wide range of sites have been blocked; as well as those deemed ‘offensive’ because of their sexual or violent content, other sites seem to get blocked on the basis of their political content.
Filtering and blocking mechanisms are increasingly being used to control public access to sites critical of the state or status quo. Some states (such as China and Singapore) require the installation of this software, making it a form of indirect state censorship. Lists of blocked sites are usually protected under legal regulations on intellectual property, so it is difficult to have an informed debate about the civil liberties implications of such censorship.