Liability of Internet Discussion Boards for Defamation

Spike440

Article in today's Irish Times. I've removed a one paragraph as I don't want to be banned.

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Reducing threat of libel
KARLIN LILLINGTON

Fri, Aug 15, 2008

NET RESULTS:ANYONE WHO HAS ever spent any time on an internet discussion board will know that robust exchanges are the norm.

Even on the most innocuous topics – knitting, gardening, celebrity hairstyles, or in the case of my own discussion board, a dog breed – slanging matches can appear out of nowhere as one person expresses a strong view that others take exception to.

And just as with e-mail, text messages or any brief written form in which it is difficult to convey an intended emotion, people occasionally take posts the wrong way, igniting a battle of words between board members.

For discussion board administrators and moderators, heated verbal exchanges – sometimes known as flame wars – are a constant worry in the legal grey zone of the internet.

Theoretically, any public post, be it on a discussion board like Boards.ie, on messaging software, on a blog or in blog post comments sections, or on a website, is considered to be “published” once it is posted and hence subject to the same laws of libel, slander and defamation as an article in a newspaper.

As with a newspaper, the writer, editor and the owner – or in this case, the board poster, moderator and admin – could be taken to court.

For board admins like me, this is a constant headache. On my dog board, Cavaliertalk.com, I ban discussions on breeders. I was a moderator on a US board where a discussion about a breeder who was clearly a puppy farmer prompted a threat of legal action by the odious woman, and nearly closed down the board. So I know how real a problem like this can be.

So do the proprietors of Boards.ie ... [paragraph deleted]

This is despite the fact that Irish defamation law makes room for fair comment, and a defence that what has been said is probably true. But for most of us running boards on tiny advertising income or out of our own pockets, the path of least resistance – banning discussions or pulling them – is easier that going to court, and often the only option.

However, a recent High Court ruling in the UK will provide fresh international case law that should loosen up this worrying operating environment for boards, blogs and chat.

In a case involving posts to a financial discussion board, Mr Justice Eady ruled that discussion boards are more akin to pub chats, not a published print medium, and therefore robust exchanges are more akin to slander, not libel.

In his judgment, he wrote that posts “are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out. Those who participate know this and expect a certain amount of repartee or ‘give and take’.”

He added: “When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”

Why is this important? As barrister, law lecturer, and chairman of Digital Rights Ireland TJ McIntrye explains on his blog ([url]www.tjmcintyre.com):[/url] “Offline, casual conversations . . . benefit from the more relaxed rules of slander, where oral (as opposed to written) communications generally don’t give a person a right to sue for defamation unless they have suffered actual damage as a result.”

So online fisticuffs are – as most internet users intuitively recognise – more in the nature of a minor verbal blow-up than a published letter to the editor or a written article. And thus, thanks to this judgment, the risk for board operators is lowered of people claiming they have been libelled in a board discussion.

One might note that this case was in Britain, and not Ireland. But the realities of internet law are that decisions in one country all greatly influence practice everywhere, because of the international nature of the net.

Or to put it another way, my own board is hosted in Ireland, but my moderators are in Scotland, two US states and Australia, and my board members come from all over the world. Someone from any jurisdiction could issue a challenge in any jurisdiction where the board is read. Running a board will always involve keeping a wary eye on posts. But this judgment helps illuminate the grey murk of online law in a significant way for board minders.

sh_o

I saw this judgment in the UK this week too - will it really make any difference in Ireland (assuming the forum where proceedings issue is Ireland) once the new defamation bill is enacted since the bill abolishes the distinction between libel and slander - will it only be useful as persuasive argument on the level of damages?

hada

all one has to do is look at the very recent decision in the UK which landed a hefty fine on an individual for comments he made about the plaintiff on facebook, to see how seriously the courts impose libel on internet discussions.

Spike440

hada wrote: »

all one has to do is look at the very recent decision in the UK which landed a hefty fine on an individual for comments he made about the plaintiff on facebook, to see how seriously the courts impose libel on internet discussions.

I don't think Facebook was held liable for anything though. Sure you can libel a person through these media, but the big undecided issue here is the extent (if any) to which the website is liable.

hada

Spike440 wrote: »

I don't think Facebook was held liable for anything though. Sure you can libel a person through these media, but the big undecided issue here is the extent (if any) to which the website is liable.

Demon Internet case in england established that if the ISP/Website itself had knowledge of the offending statement and did not take steps to remove it, it is then found liable. Otherwise it can escape liability - still leaves the complainant leave to bring a case against the offender.

TJM

sh_o wrote: »

I saw this judgment in the UK this week too - will it really make any difference in Ireland (assuming the forum where proceedings issue is Ireland) once the new defamation bill is enacted since the bill abolishes the distinction between libel and slander - will it only be useful as persuasive argument on the level of damages?

The judgment doesn't go to the libel / slander distinction per se - instead it focuses on the different ways in which statements are parsed to see if they have a defamatory meaning, and gives more leeway to casual communications, be they oral or online. The following is the crucial passage:

When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions. People do not often take a “thread” and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it....

From the context of casual conversations, one can often tell that a remark is not to be taken literally or seriously and is rather to be construed merely as abuse. That is less common in the case of more permanent written communication, although it is by no means unknown. But in the case of a bulletin board thread it is often obvious to casual observers that people are just saying the first thing that comes into their heads and reacting in the heat of the moment. The remarks are often not intended, or to be taken, as serious.