Media Celebrities, Defamation and Internet liability

Media Celebrities, Defamation and Internet liability

Zia Akhtar [1]

Cite as: Akhtar, Z, 'Media Celebrities, Defamation and Internet liability'. European Journal of Law and Technology, Vol. 3, No. 3, 2012

Abstract

The frequency of the electronic media as a source of harm to an individual' s reputation is growing as it is a source of knowledge on the information highway and has the potential to leave indelible marks on careers.

1. Introduction

As communication technology advances, the law of defamation has been in danger of becoming obsolete. The law has emerged slowly over time to deal predominantly with traditional forms of publication and has struggled to adapt to new forms of social media, which are developing at breakneck speed. There is an identifiable anomaly between the newspaper print which assumes readership of a particular article based upon its inclusion in a published edition, irrespective of how prominent or how large its circulation and the publication on the largest 'blue' chip internet sites. Intrinsically related is the current debate about super injunctions and their tenability in the ever-developing world of online communication, in terms of the consequences of what may happen if false allegations are made online, whether that is through social media sites or otherwise. If such allegations are made, then responsible parties risk becoming embroiled in accusations of 'online libel', with potential liability and the need arises to enact legislation to prevent the injury to reputation arising from publication in the electronic media.

The libel of sports' and other celebrities via the internet has assumed challenging proportions because the social networking websites pose many new issues of privacy injunctions in their myriad forms. It has been backed by the numerous recent suggestions that the law in its present form simply is inadequate and that reform is required. The issue is important because of the fact that it is relatively simpler to identify the defendant on networking website. This is more difficult in situations where the defamatory material is posted online by anonymous internet users. Where the main defendant may be 'person or persons unknown', a claimant will seek to pursue against the website host as well as the person making the defamatory statement.

In England there is a so-called 'publication rule' that makes for particular concerns for website hosts and the moderators. The rule states that every time a defamatory comment is viewed there is a new publication of that comment. The website hosts may be guilty of 'secondary publication' whereby they facilitate the publication of defamatory material by a third party. The publication rule is particularly unfortunate for website hosts who, by the nature of their service, may end up publishing a defamatory comment several times over. This matter is further complicated by the ease with which foreign parties can sue another party in the English courts. The general principle is that as long as the defamatory statement has been published in England and the claimant has some public reputation in the UK that has been damaged, then the claimant can sue. This rule was developed before the internet made it possible to publish anything, anywhere in the world and its dissemination to the users by the push of a button. The internet usage has grown exponentially since the social networking websites became predominant in the era of mobile communications.

However, in the UK the Internet Service Providers (ISPs) are generally protected from proceedings by the Electronic Commerce (EC Directive) Regulations 2002. [2] These refer to an 'information society service.' Where ISPs act merely as conduits and remove defamatory information upon request they are unlikely to be liable for publication. The same rule applies concerning the role of search engines. This has presented a dilemma which is those who run sites that allow the posting of user generated content, the decision of whether or not to moderate users' postings amounts to a dilemma. The higher the responsibility that is accepted for moderating a site, the more likely it is that the site's owners or moderators will be held liable for defamatory comments, especially if they are not deleted swiftly once a complaint has been made. There is considerable concern at the manner in which the media outlets who are meant to be prevented from disclosing the names of people by a series of super-injunctions, and yet both Twitter and Face book, which are based in the US and outside the jurisdiction of British courts can reveal their identities. This means that the information that may be defamatory is being printed in the electronic but not in the print media.

2. Dissemination by internet search engines

The advertising agencies have a direct role in the promotion of the celebrities in sports or entertainment who have super injunctions awarded in their favour. The expert view is that the agencies create the big brand campaigns and ideas and their effectiveness on behalf of clients is at spotting emerging trends in the media. [3] However, in order to achieve that outcome the agencies need to further clients into new fields of technology and the internet is the viable source for that promotional activity. This leads to the legal issues that can arise with the application of new software. The last five years have seen the rise and popularity of Face book, Twitter and the use of applications such as the so called 'apps'. The legal framework to deal with these new areas is the same, although agencies have a different format and a risk based approach. Their structure depends on their subscribers as only those who have been invited can access and be a part of their circulation list of private networks that have the potential to report on individuals and spread malicious gossip about them.

It has been held in the English courts that a search engine is not an IPS provider. This was argued in Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc where the claimant was a distance learning provider who notified Google and a third party website that they were publishing defamatory statements bearing the meaning that its products were a scam. [4] The original statement by the defendants had been published on a web discussion forum and Google searches on the product name produced the scam allegation as part of a resume of information accompanying the hyperlink. The claimant conveyed to Google and the web forum site and issued proceedings when neither the statement nor the search results were removed from the internet. The corporation, Google Inc (domiciled in the US), made applications to have the order for service struck out of the jurisdiction and for a ruling that the claim was against public policy, abuse, non-publication, and also raised the defence under s. 1 of theDefamation Act 1996, regs. 17 - 19 of the E-Commerce Regulations 2002, and innocent dissemination at common law. [5]

The High Court decided that a search engine is not a publisher at common law, whether before or after notification of a defamation claim and is not an operator as a website or ISP, as it had no input over search terms entered and its automated publication thereafter. The defendant did not have to rely upon section 1, as there was no reasonable care being inherent in an automated system; the UK Government had not enacted a statute that would have extended protection of the E-Commerce Regulations to search engines and there was a material misrepresentation on the application to withdraw from the jurisdiction which justified the Master's order being set aside. Justice Eady's ruling acknowledged that a voluntary or statutory take-down procedure for search engines may be desirable. However, his finding that they are not publishers makes it questionable whether search engines will now take down libellous material from their servers. The judgment also confirmed that the defence of innocent dissemination at common law was not abolished by s.1 of the 1996 Act.

The availability of evidence varies and lateral evaluation may be required as aggregative website traffic data may be insufficient evidence of wide scale publication. However, it is a starting premise and the Audit Bureau of Circulations monitors mainstream site. In the first weeks of publication the major destination websites cannot preclude the readers accessing internally hyper linked first or second layer pages. In this instance the first requirement is to identify the person responsible for the material, or the ambit of publication. This may involve disclosure application against any or all of the website operators, host, domain name registrar, blog operator, social media site or ISP. The server information and web access logs are 'documents' for the purposes of disclosure. The ordering of the disclosure is intrusive and the courts require the applicants to establish a prima facie case that the respondent's reasonable expenses are met and the disclosure sought should be in relation to non trivial material.

3. Curbing the power of the internet

The web companies in the UK Regulations would prefer to go further and their IT experts suggest that the software applications must consider the substantive aspects which includes different time zones, changes to IP address and server engines in the package. [6] The applications are made promptly as IPS and web hosts do not retain publication for long periods. The evidential benefit in a defamation case would allow the defendant's internet activity to be monitored and the relevant information gleaned from it would be admissible in a libel case.

The difficult decisions around the issue of pre-action disclosure for claimants are where the publisher has gone to great lengths to conceal their identity. There could be a number of applications to domain name restraints, owners and email address providers that become necessary. However, where the evidential trial leads to outside the UK, disclosure may be much more unlikely and other strategies that are part of the damage limitation exercise would have to be considered by the plaintiff. An IT expert is likely to examine other circumstantial evidence on the internet, on other websites. The IP surfing and domain name registration services may assist the court in determining if there has been dissemination of information. There could be found through leads in past ownership of domain names. The claimants and defendants must carefully consider the evidence available of the publication that is the subject of libel.

The availability of evidence varies and lateral evaluation may be required as aggregative website traffic data may be insufficient evidence of wide scale publication. However, it is a starting premise and the Audit Bureau of Circulations monitors mainstream site. In the first weeks of publication the major destination websites cannot preclude the readers accessing internally hyper linked first or second layer pages. In this instance the first requirement is to identify the person responsible for the material, or the ambit of publication. This may involve disclosure application against any or all of the website operators, host, domain name registrar, blog operator, social media site or ISP. The server information and web access logs are 'documents' for the purposes of disclosure. The ordering of the disclosure is intrusive and the courts require the applicants to establish a prima facie case that the respondent's reasonable expenses are met and the disclosure sought should be in relation to non trivial material.

In a recent High Court case of McGrath & Anor v Dawkins & Ors (Rev 1) [2012] EWHC B3 (QB) the judge stated that a person who links to a webpage containing defamatory material could themselves be liable for defamation. [7] The plaintiff was Mr McGrath who brought the action on behalf of himself and his company MCG. They sued Professor Richard Dawkins, The Richard Dawkins Foundation, the online retailer, Amazon, and Mr Jones for comments made by him on various online relating to Mr McGrath's book 'The Attempted Murder of God: Hidden Science You Really Need To Know'. This started a debate on the internet which was 'religion versus science' and which became very personal. In the action against Amazon the judge, HHJ Moloney QC, found that as Mr McGrath had not used Amazon's standard online complaint system to notify it of the alleged defamatory material, Amazon could not be deemed to have actual knowledge of the comments in terms of Regulation 19 of the E-Commerce Regulations 2002. Therefore the claim against Amazon was struck out.

The case centred on the main issue of whether The Richard Dawkins Foundation was liable for providing a connection to the alleged defamatory comments which were posted on the website, which was operated by a separate US company which was not a party to the action. The RD Foundation operated the website in the UK and also provided a link to the comments on the net website. HHJ Moloney QC held that 'the two websites are very closely associated [and] the link was hidden'. [8] However, when a party clicked on the 'Home' button of the .org site, it resolved to the index of the forum on the .net site without the user being given any indication that he was being directed away from the original website. It had to be factually determined whether the .org website could be liable for content on the .net website. However, the judge held that he was not prepared to strike out Mr McGrath's claim until further evidence is heard. The case is particular to its facts but it serves as a reminder of the need to be cautious when linking to material online to third parties and to be aware of what the link actually contains.

The problem of Internet libel is that it is has an inherently transnational nature because of the international connectivity of the internet; it causes a speedy transmission of huge amounts of data simultaneously to multiple destinations, and general lack of integrity for national borders. The internet users are not a homogenous group and it is important to separate out the potential liability of those who provide individuals and corporations access. These are not just the Internet Service Providers (ISPs), such as CompuServe, Demon, Pipex, etc., provide access to the websites on subscription but also non-commercial hosts such as universities.

The UK government has expressed its dismay that the internet technology is undermining the privacy laws that are in place. There is a new Defamation bill in the UK Parliament which proposes the introduction of a 'single publication' rule, which would mean only one publication would be deemed to take place when material is posted online, rather than a new one every time the information is viewed. The Bill's objective is that the ISPs and the Twitter are brought to a closure by accepting that the modern means of communication pose a massive challenge in the world of defamation claims. Worldwide social networking involves considerations of the global damage to reputation on the internet to reputation of sports personalities and media celebrities. Under the recommendations the ISP's publication platforms will have to moderate the content of their site to maximise the balance of freedom of speech with protection of reputation. The bill is intended to relieve some of the risks in respect of multiple publications and libel tourism for website hosts. [9]

There are four core principles of legislative reform which are freedom of expression and protection of reputation; reducing costs; accessibility and cultural change. The proposed changes in substance may reduce the potential burden on website hosts and moderators to a limited extent but the courts are still likely to consider how widely a defamatory posting was viewed when calculating damages. The purpose of any legislation should be to not allow the media to have a license to disparage a person's reputation who is in the public eye and which leads to unfairness and discrimination.



[1] Zia Akhtar is a member of Grays Inn. He is a specialist in European media and commercial law. He has written on intellectual property law and technology in the EU and Sports Law, European Compliance Law Review, Nano technology and Business Law Journal.

[2] The Department for Trade and Industry (now the Department for Business, Innovation and Skills) guidance on the Regulations (30-page / 262KB PDF) states: "The requirement for an information society service to be 'normally provided for remuneration' does not restrict its scope to services giving rise to buying and selling online. It also covers services (insofar as they represent an economic activity) that are not directly remunerated by those who receive them, such as those offering online information or commercial communications (e.g. adverts) or providing tools allowing for search, access and retrieval of data."

[3] A Southam , New Media Opportunities and Risks, www.5rb.com/conference/5RB_Conf_prog_2010_13.pdf

[4] Metropolitan International Schools Ltd v (1) Designtechnica Corporation (2) Google UK Ltd & (3) Google Inc (2009) EWHC 1765

[5] Section 1 of the Defamation Act 1996 provides (1) In defamation proceedings a person has a defence if he shows that (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

[6] T J Barnes, D Hirst and Dr L Godfrey he Internet and Defamation. www.5rb.com/conference/5RB_Conf_prog_2010_13.pdf

[7] McGrath & Anor v Dawkins & Ors (Rev 1) [2012] EWHC B3 (QB)

[8] McGrath & Anor v Dawkins & Ors at para 26.

[9] Joint Parliamentary Committee on the Draft Defamation Bill prepared a report detailing their suggested amendments to the Bill on 19 October 2011. http://www.worldservicesgroup.com/publications.asp?action=article&artid=4195