There is a trend towards viewing libels on the internet as different, writes JOHN MAHER
REPUTATION IS a fragile thing. This has never been more so than today when just a few keystrokes can initiate a massive and worldwide defamation of any person on a scale undreamed of in the past. Anyone with a smartphone or a computer linked to the internet can initiate a libel with a reach and effect which even the most powerful press barons of previous centuries would have envied.
As legislators and courts have struggled to come to grips with advances in communications technology, it has often seemed as if the internet and social media have become a wild west of publishing, where there are no boundaries and everyone is armed.
Much of the ongoing debate concerning defamation in the modern era centres on the extent to which libel rules formulated in the age of the telegraph and the printing press should be recast to reflect how people communicate today. The debate has also reflected the fact that not only has technology changed the manner in which people communicate, but it has also changed the kinds of discourse that many people are prepared to engage in publicly.
A libel on television or in a book or newspaper has always be seen as a serious matter, but another question is now posed: should the ramblings of midnight bloggers arguing with each other over their personal obsessions merit quite the same attention?
The most immediately attractive answer is that a defamatory statement is always a very serious affair (especially when it is about you) and that therefore universal rules should apply across all types of media.
In recent years, courts have gradually reviewed that position, for a number of reasons.
The first is that computer records relating to online publications have been able to undermine any presumption that just because it was published, a defamatory statement must have been seen by many people.
In a celebrated case ( Yousef Jameel v Dow Jones), the English Court of Appeal accepted computer evidence that only five people in England had accessed the offending article published on the internet, three of whom were apparently associates of the plaintiff. Technology, in effect, proved the level of publication in the jurisdiction was so minimal that taking the case amounted to an abuse of process.
In current internet cases, courts are prepared to try to assess what level of publication has actually occurred. There have been instances where judges have held it fair to assume an article containing the kind of words or phrases which people regularly enter into search engines (in one case, the phrase “the Yorkshire Ripper”) is more likely to have many readers than an article with no such popular search terms.
The second reason courts have begun to consider whether some electronic publication should be viewed in a different light is the recognition that in the typically freeflowing exchanges of internet discussion sites and social media, an abusive exchange may entail a certain level of consent by the participants, such that words which might be seen as libellous in another context become no more than part of the strident discourse which each party is helping to sustain.
Thus, a plaintiff libelled by a trade union official (in a 2008 case in England) was told he was entitled to only half the damages he would otherwise have received, because his own website postings were unnecessarily provocative and offensive and set the tone of the defamatory statements about him which followed.
A further consideration is the idea that if vigorous exchanges are to be accepted as the norm in electronic forum debates, then those engaged in them have the capacity to respond quickly to any libellous charge made against them, and ought to do so.
Last month in Canada, a judge considered a libel case resulting from online message board exchanges over a controversial Guantánamo trial. The plaintiff in the Baglow v Smith case complained he was defamed when described as “one of the Taliban’s more vocal supporters”.
The judge did not believe the words were defamatory of this plaintiff, but went on to stress the significance of the fact the words complained of emerged “in the context of an ongoing blogging thread over the internet”.
“Internet blogging is a form of public conversation,” Judge Peter Annis of the Ontario Superior Court said. “By the back and forth character [of the thread], it provides an opportunity for each party to respond to disparaging comments before the same audience in an immediate or a relatively contemporaneous timeframe.
“This distinguishes the context of blogging from other forms of publication of defamatory statements. One exception could be the live debate, of which blogging constitutes the modern written form.”
In this instance, the plaintiff had not denied supporting the Taliban’s aims when first he could have, the judge noted. Such a denial would have been expected by the audience, for whom the thrust and parry of debate might be just as important as the substance of the claims being made.
In effect, the judge viewed the plaintiff blogger as one might view the bruised boxer who staggers from the ring and announces that he plans to sue his opponent for assault.
Undoubtedly, the Canadian judge left plenty of scope for an appeal and it would be wrong to conclude that chatroom or blogosphere libels do not matter quite so much as libels elsewhere. There is a perceptible trend though towards viewing them differently and it is not fanciful to suggest that one day the views of Judge Annis may be considered mainstream.
Until then, undoubtedly it remains prudent for anyone intending to post material online to treat every statement as if it were carved into stone, and potentially for consideration later, at length, in a hushed courtroom.
John Maher BL is a practising barrister. His book, The Law of Defamation, will be published next month by Round Hall.