Sharing is publishing: Why you’re not social media smart (III)

Let’s quickly answer a few questions on defamation. One, you own a blog, a page or an online newspaper and someone posts a defamatory post on your site or page as a comment. After reading it, one of your readers felt bad and drew your attention to the post. He told you that what the […]

Let’s quickly answer a few questions on defamation.

One, you own a blog, a page or an online newspaper and someone posts a defamatory post on your site or page as a comment. After reading it, one of your readers felt bad and drew your attention to the post. He told you that what the commenter posted was not only defamatory but also a complete fabrication. In complaining to you, he also sent some documents to support his side of the story and to emphasize that what was posted against him was a lie.

You felt that he was making a mountain out of a mole hill. To be honest you were slightly annoyed by his long letter of explanation to you. You felt that if what was posted on your page was indeed a lie, the guy should simply ignore the post.

Your biggest defence however was that you were not the author of the post. As far as you’re concerned, you only offered a platform for people to speak their minds freely without facing the normal restrictions from the regular media.

To you, deleting the comment or asking the commenter to remove it would go against the purpose of your page.

He threatened to sue. What are you going to do? Do you have any chances of winning? “I don’t even agree with the comment,” you said, “but removing it will be taking away his freedom of expression. Surely a judge will see this?”

Is your confidence misplaced?

Before we answer that question, let’s first the define our terms. What is defamation?

“The action of damaging the good reputation of someone; slander or libel,” says Oxford.

While this is a succinct definition, it left out quite a few things. For example, at what point can you be said to have defamed someone?

First, the information, in the eyes of a reasonable person, must be deemed to have lowered the estimation of someone. And lastly, you must’ve published it. Now the important question is, what is “published?”

We already know the common ways we publish. In the case of libel (defamation in writing) for example, one common way is to print the information in the newspaper. You would be surprised, however, to learn of things that constitute publishing. For instance, sending an email is considered published, leaving a comment on a social media page is considered published.

In other words, you can hold as much  defamatory thoughts about someone as you like but once you shared it with another person it is considered published.

Following are the main defenses for defamation:

Justification, Fair comment (opinion only), Privilege,  “Public interest”, Accord and satisfaction and Offer of amends. Out of the foregoing, justification or the “truth defence” is the most powerful.

There are other defences such as: Innocent dissemination, Consent, The claimant has died (since defamation is personal, only the living can sue), Proceedings were not started within the limitation period (it used to be three years but reduced to one), The matter has already been dealt with (you bring the matter that has been dealt with against the same defendant).

Each of the above defence has its own conditions that may lead to complex and costly trials.  So it is best to avoid defamation.

Accordingly, to answer the question above, it would be better for the webmaster, the blog owner or the social media page owner to delete the defamatory comment, even if he wasn’t the author – especially since the lie in the post was brought to their attention.

Because both the page owner and the commenter can be sued and you may lose the case – especially since you have the editing privileges to the page or blog; which means you can easily delete if you wanted to.

Indeed while researching for this paper, I checked some of my old school records and found an assignment which relates to this. Let me share the question here and how I answered it:

Q10. An internet service provider (ISP) hosts a dedicated website which incorporates a live news feed, bulletin boards and chat rooms. What defamation risks should the ISP be aware of and what precautions can it take to avoid a libel action?

Answer

As a company which hosts or edits a website, the ISP needs to be aware that the defamation laws apply as much to the internet as they do to newspaper publishers and broadcasters.

However, Section 1 of the Defamation Act provides a very limited defence of innocent dissemination. This section is intended to provide a defence to those who unwittingly provide a platform enabling another person to publish defamatory material; but it is only available to those who are not the “author, editor or publisher”.  So this defence is available to the ISP.

Therefore, it should not accept any contribution that is defamatory and once published, the company must remove such material immediately from the website.  The test of ISPs is whether they take reasonable care to ensure defamatory material is not posted on web pages.

Some of the ways in which contributions might be defamatory are: forgery, as happened in the case of Godfrey v Demon Internet Ltd in 2001.  Although the ISP received a fax from the lecturer on the forgery, the ISP refused to remove the forged material because, the ISP argued, although the material was stored on its servers, it was not responsible for the posting. It claimed it had a defence under Section 1 of the Defamation Act.  But the judge ruled that the defence is available to only a defendant who had taken reasonable care in respect of publication and had no knowledge or reason to believe that what it did caused or contributed to the publication of a defamatory statement.

Later, Demon settled the case out of court, agreeing to apologise to Dr Godfrey and pay him £15,000 damages and £230,000 legal costs.

The same dangers apply to e-mail messages. There have already been libel actions over e-mails sent to colleagues, but even a single e-mail message sent to someone’s private address may be “published” if anybody else has access to their computer.  The same concerns apply to other restrictions on publishing like contempt of court or the provisions of the Children and Young Persons Act 1933 and Sex Offences (Amendment) Act 1992.

Here’s another related question: what liability do you face, if any,  for defamation if you share a defamatory material of which you are not the author? In other words you only shared a post, you didn’t compose and you were also not the first person to share it.

Many of us are guilty of this. People share posts these days as if their lives depended on it. In this case, sharing is also publishing.

You may not be the author. But your offense is called repeating which makes you liable.

So appending “copied” to your shares wouldn’t save you.