OK, as someone who knows a leetle about defamation law, the situation is this: no-one really knows yet. I would think most courts are a bit scared to admit cases about internet defamation because if they did and a case won, they would be deluged and unable to cope with their normal running.
I'm talking from a Scottish perspective, but the English one is similar. Scotland is just a tad less forgiving (to defame someone in Scotland it is possible to do it to their face in a closed room with no witnesses and still be sued for it. In England it isn't) and the BBC site on libel doesn't cover it properly. It's quite easy to defame someone. For the purposes of this post, assume defamation=English libel, not quite the same but makes it easier.
For something to be defamatory, there are three tests:
1) Publication: The statement must have been published.
2) Identification: The statement must be understood to refer to the person claiming defamation
3) Defamation: The statement must (in one of various conceivable ways*) damage the reputation of the person claiming defamation to the extent that their reputation would be lowered. Which is why it's open season on Jeffery Archer and Jonathan King.
If these three are satisfied, it IS defamatory, and you are in deep shit unless you can use one of three defences (well, four, really, but the distinction is too complicated to go into here).
A) Veritas: It's true and (more importantly) you can prove it.
B) Public interest: You can show that it is more important that the person is defamed than not (again, remember this is a defence. You HAVE defamed this person, but you're trying to justify it).
C) Privilege: There are set situations (such as accurately and contemporaneously reporting court proceedings) in which you are allowed to publish anything said by participants. Be careful here, though as you might get hit with contempt, which is a whole other scary ballgame.
OK, the reeeeealy good news here (for some posters) is that posting something nasty about another member of Barbelith is very very unlikely ever to result in a successful suit. This is because we are all pretty much anonymous, so the identification requirement is very hard to prove. I think only Tom, Cameron and a handful of others would be sufficiently easily identifiable. Should someone start telling the board too much about themselves, don't say nasty things about them.
The bad news is that (under Scottish law at least) anything that is published in Scotland can be treated as defamatory under Scottish law in Scottish Courts. Who can be sued? Anyone that distributes the defamation. Anyone. In the case of newspapers, the list might read:
The reporter who wrote it
The editor who passed it
The paper's proprietor
The sub-editor who edited it
The printers
The van drivers
The newsagent
The paperboy/girl
Someone who cands you a copy of the paper
Of course
Now, just try and extend that to the internet. Fucked-up, isn't it? So far only ISPs have been targeted, but just wait until Claims Direct get a whiff of it.
So, calling someone a simpleton on a messageboard might be OK for now. It might not be when it's easier to track posts or identify the alleged simpleton. By the way, the word "allegedly" is no defence at all, nor is the claim you're just repeating what someone else said. So quoting posts means you are just as guilty as the original poster.
However, in the only well-known UK case (Godfrey v. Demon Internet) the judge ruled it was Demon's refusal to remove a post from one of their newsgroups when asked that rendered them liable rather than hosting the post. I'm not clear if this was a usenet group, but if it was, gods help us. Usenet is mirrored everywhere - as are Google caches of Barbelith. We could be setting all sorts of poor bastards up for trouble.
PS: This in no way constitutes legal advice, just the ramblings of someone who's a bit bored. It's all about what you should not do, and in no way tells you what you should.
*Don't forget that a literal claim might be true (for example, "Well, we know he doesn't go with prostitutes, don't we?"), but the implication or innuendo of such a statement (that he really does) is also defamation. Be careful. |
