When is an online comment defamatory?

Rob Minto looks at two recent cases that leave the field of libel online as confusing as ever.

For several years, newspapers, bloggers and other online publishers have been waiting for a landmark case to clarify defamation online.

The unanswered questions have been along the lines of: who’s responsible – the author or publisher (or even ISP)? What jurisdiction will it fall in? What kind of audience is required (if at all?)

In the UK, in quick succession, there have been two cases which have, if anything, muddied the waters.

Most recently there was the case of libel between Caerphilly town councillors Eddie Talbot and Colin Elsbury. Mr Elsbury claimed on Twitter that Mr Talbot had been removed by police from a polling station. Mr Talbot has successfully sued him for libel, and Mr Elsbury had agreed to pay Mr Talbot £3,000 in compensation, to publish an apology on his Twitter site, and pay legal costs.

At time of writing, Mr Elsbury has 30 followers on Twitter, a group that could easily fit into a pub (relevance will be clear later).

Some clarity, you might think – but earlier this month, Jane Clift lost her case against the Daily Mail, in which she was trying to get the identities of two commenters on a Daily Mail article to sue them for defamation.

This from Out-Law:

Mrs Justice Sharp said that Clift’s case was not strong enough to merit the identification, and that she should not have taken the comments as seriously as she did.

“It was fanciful to suggest that a sensible and reasonable reader would understand those comments as being anything more than ‘pub talk’,” she said in her ruling.

This raises a lot more questions than it answers. In no particular order:

  • The Daily Mail has an audience of millions. That’s far bigger than a pub. How is it not defamatory to post something libellous on a website? If the comments were not defamatory, then give her the names, let her try and sue, and she can lose that case in a court of law.
  • If the comments were not defamatory, then why has the Mail removed them?
  • Was Ms Clift penalised for looking like too much of a complainer? Originally, Slough council put her on some watch-list for complaining about a drunk, she then sued them (and won), and then has taken a legal case against the Mail. On paper, that looks like a lot of complaining. But then, what was she supposed to do? She’s in a Kafka-esque chain where one (legitimate) complaint has led to another, and to her life being up-ended. She’s using the courts, which is what they are there for. Except for libel, where she’s been restricted.

So, to sum up: if you post something libellous on Twitter about a local rival politician, and have only 30 followers, you can get sued. If you say something potentially libellous, using a pseudonym, on a UK newspaper site, with page views in the millions, you’re fine – that’s just “pub talk”.

I’m quite confused.

[Disclaimer: I work as the Interactive editor at the Financial Times. On FT.com we have users comments on our blogs and other sections of the site, and operate a post-moderation policy.]

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12 thoughts on “When is an online comment defamatory?

  1. Michael Cross

    It seems reasonable for the courts to treat a defamatory statement about a candidate made in the course of an election as being at the upper end of seriousness.
    What did Ms Clift sue Slough for? You’ll recall (Derbyshire) that councils can’t be sued for libel.

    Reply
  2. Carl Richard Bennett

    … when the plaintiff hasn’t got an expensive team of lawyers and a big budget. Oh, and the means to make the court look stupid. That helps too.

    Reply
  3. Yachydda

    I think social network sites are generaly accepted as public places now arn’t they?
    I have always been wary of Facebook and Twitter in this respect, its more personal than the reply sections in newspapers.
    The other related subject here is jurisdiction, if you look at the law of injunctions against newspapers talking or discusing a particular person for reasons of privicy, Bloggers and web based news sites are outside jurisdiction of the courts, I wonder what the law is if that same website or blogger crosses the line and publishes libelous coment, are they still outside the courts jurisdiction?

    Reply
  4. Mark - Editor (ISPreview)

    We’ve come across this problem on ISPreview.co.uk a lot over the years and increasingly the UK libel laws are being used to silence criticism of underperforming commercial services by consumers. In a small number of cases it can be justified but in most it definitely is not.

    The problem for a website like ours is that the laws are now so confusing and convoluted, much more so than the above examples, that the only real solution is to air on the side of caution and tackle often insignificant remarks with a harsher stick.

    My concern here becomes the damage to freedom of speech, especially when commercial firms go after totally insignificant remarks. I welcome the new Libel Law reform and hope that it puts an end to the allowance for overzealous legal action.

    Reply
  5. Cary Heyer

    The legal boundaries as to what constitutes libel should not be restricted to traditional media. One might argue that the penalties for posting a libelous claim should be harsher given its worldwide reach and infinite shelf life. It’s time for one of our elected officials to author a bill that clearly outlines the definition of libel as reflected in the Associated Press Stylebook, introduce it to their colleagues, and pass it with haste. The same goes for cyberbullying. There should be no tolerance for cowards who use social media to taunt and harrass.

    Reply
  6. Robespierre

    The law aside, it would be helpful to have some background on this particular case. What was the Daily Mail article about – her complaint about the man in the park and the Slough council watch list? It appears she complained about a drunk in the park, and her complaint – which sounds like it could have been over the top – and the situation with the Slough council got the Daily Mail story. Did they place her on the list due to the nature of her complaint and the way it was stated? Did the Daily Mail report on that, then two commenters on that story post something “over the top” about her?

    Sounds like she wants it both ways. She sues Slough for identifying her for an angry complaint, but she sues the commenters for their “angry” comments, which may have belittled her for being so upset and sensitive. You’d have to see the nature of all those comments to know the truth. But these suits seem frivolous, tying up the courts for inconsequential “hurt feelings.” That’s not really what the courts are for.

    It seems like Ms. Clift is “sue-happy” – so much so that perhaps she should change her name to “Sue?” Oops, now she’ll sue me.

    Reply
  7. Philip John

    Comparing apples and oranges a bit isn’t it?

    In the first case (the tweet) it was all about the content of the tweet and the *person* who tweeted it. You could easily replace “twitter” in this case with “local blog” – it doesn’t sound like there was ever a discussion about the platform, just the defamatory comments.

    In the second case it’s all about identifying those commenters. If she’d have got the identity of the two commenters *then* she would bring a libel case and only then could you compare the two incidents because you would have two libel cases.

    Reply
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  11. Jane Clift

    I would like to respond to the comment posted by Robespierre as to my “inconsequential hurt feelings”. It is precisely because people such as myself are commonly viewed as ‘inconsequential’ that the ‘backcovering’ of such public bodies goes largely unchallenged.

    I had simply asked the Daily Mail to identify persons who had posted false and abusive remarks inferring that I had made death threats against NHS staff and that I had caused vast amounts of public money to be wasted. The Court decided that this was simply “pub talk” that I should not have taken seriously and I feel this does not bode well for others who have defamatory comments published about them on the internet with no form of redress – not even an apology or to request that the comment be amended (unless they have a prohibitively expensive legal team).

    The comments arose from misconceptions about my earlier libel victory; in that case the Council finally accepted during the trial that I had made a legitimate complaint and that there were “inconsistencies” in the accounts given by its officers. The evidence of police officers directly contradicted that of the Council’s own staff.

    Robespierre says,”that’s not really what the Courts are for” – so what does he think the public actually fund the judiciary for, if not for truth and access to justice? As for being “sue-happy” as he puts it, the case took four years to get to the doors of the High Court and it was a long, hard slog (I managed to get my excellent legal team on board ten days before the trial).

    In my view, the real nub of this case has not yet been properly grasped. I was fighting an insurance company that a public body was seeking to hide beind rather than, in its own words, “admitting we had made a mistake”. This case exposed the lies, bucked the class system and I do believe we have established case law. I feel very proud, very grateful to my lawyers and no, Robespierre, I will not be changing my name!

    Reply
  12. Bill

    For example We can mention The controversy over censorship and maladministration at the Voice of America (VOA) took a bizarre twist on July , 22 2011 as the Director of Africa Division, Gwen Dillard, forbid staffers from taking notes at a meeting she held with employees at VOA Horn of Africa section, reliable sources told Addis Voice.

    Ms. Dillard, who was said to be visibly nervous during the meeting, told a roomful of journalists and support staffers that she decided to take the measure as she “was quoted verbatim” in an Addis Voice investigative report, VOA censorship chief revealed. The story alleges that Ms. Dillard has emerged to be in charge of censoring the VOA Horn of Africa Section including the popular Amharic service.

    The Africa Division Director warned staff members that leaking information on the internal matters of VOA again would have serious consequences. After Addis Voice named Dillard “VOA censorship chief” based on facts, she launched her own inquiry into the leaking of her censorship orders to staff members.

    Leaking information to journalists is as old as journalism itself and is lawful in countries like the United States unless the information is state secret that jeopardizes national security. Alemayehu Gebremariam, a constitutional law attorney and professor of political science at California State University, San Bernardino, noted that the Whistleblower Protection Act prohibits retaliation against a federal employee for disclosing illegal or potentially illegal conduct.

    “It was for the first time in my entire life that I attended a meeting where taking notes was forbidden. VOA is becoming a little police state. After so many years as a journalist, I felt like a kid being taken care of by a super-nanny,” said one of our sources. The source felt that Dillard went too far to the extent of infringing upon the basic rights of federal government employees.

    “Some of us are proud of the freedom we enjoy as American citizens. I find the whole situation disturbing,” another source added.

    The meeting that took close to an hour was mainly focused on the content of the Amharic service. Dillard told staff to do more people-focused programming and should cut down the number of issues and stories that focus on political affairs. But some staff members pointed out that in a country like Ethiopia, where people live under a repressive government, politics pervades all aspects of national life. Some others also raised the fact that the greater portion of VOA Amharic programs is nonpolitical and tried to convince Gillard that coverage on politics should continue.

    Dillard said that VOA would like to focus more on nonpolitical matters and gave some instances. According to her, programs and reporting focused on education, health and development would be more beneficial to listeners. As an example, she said that a schoolgirl must have a chance to talk about her interests and future aspirations. Dillard also said that training would be made available to help journalists produce such people-focused programs and stories.

    Dillard noted that such an approach to VOA coverage was not new and had already been communicated to former Horn of Africa Chief, David Arnold, who was controversially suspended after he exposed the demands of the Meles regime to banish a list of vocal critics from VOA airwaves. Despite the fact that Arnold has been reinstated at VOA, he has been transferred to the English section. Dillard said at the meeting that a new Horn of Africa chief would start work within eight days. The new chief will be “very interesting”, she informed staffers.

    “The main problem with our bosses is that they do not still get it why VOA is a trusted broadcaster in Ethiopia. They have ignored the fact that the popularity of the station is due to the fact that we broadcast uncensored news and views to a nation that has long been silenced by authoritarian rulers,” said the sources.

    “If VOA decides to go down the drain to join the propaganda outlets of the Ethiopian government by censoring news and opinions, I do not think that people would be interested in its broadcasts. I am deeply concerned over this direction that can make VOA irrelevant to most Ethiopians,” the source added.

    From June 21 to 28, three Broadcasting Board of Governors and four senior VOA staff members, including Arnold, visited Ethiopia, Southern Sudan and Nigeria. Though it was reported that the delegation discussed matters related to the jamming of VOA transmissions to Ethiopia, the greatest threat especially to VOA Amharic is internal censorship and information filtering. VOA Horn of Africa service has faced one of its worst crises after the suspension of David Arnold for telling the truth accurately and the deletion of news files that contained no factual errors.

    One of the orders given by Dillard to the Horn of Africa section is not to broadcast any listeners’ comment on the current controversy rocking VOA. On Monday July 18, one out of hundreds of comments on the issue was aired. Addis Voice has later been informed that the July 18 audio file was deleted from VOA Amharic webpage as bosses have appeared to be too nervous to take criticisms and allegations against questionable conducts at the station that are contrary to the missions of VOA.

    Ethiopian journalist Sisay Agena says he was shocked and disappointed to see the Voice of America gaining bad experience from oppressive regimes. “It is sad to know that Ethiopians are being censored by their own government as well the Voice of America, a broadcaster which had the trust of the people of Ethiopia for providing uncensored news and opinion,” he noted.

    Meanwhile, VOA has refused to answer some questions posed by Addis Voice in relation to the censorship scandal that has ruffled feathers up to the offices of the Broadcasting Board of Governors (BBG), which is an agency of the US government that oversees its civilian international broadcasting, including the VOA, Radio Free Europe/Radio Liberty (RFE/RL), Radio Free Asia (RFA), Radio and TV Martí. The declared mission of BBG is: “To promote freedom and democracy and to enhance understanding through multimedia communication of accurate, objective, and balanced news, information, and other programming about America and the world to audiences overseas.”

    On Monday, July 18, Addis Voice, emailed a few questions to VOA Public Relations Department. Initially we were told that the Acting Director and Executive Editor, Mr. Steve Redisch, should approve the replies. Despite the fact that we have repeatedly called the PR office to get a reply the consistent answer we have received is a short sentence: “We do not have an answer today!” Our repeated efforts to speak to VOA PR Director, Mr. David Borgida, have not materialized.

    Addis Voice hopes that VOA will soon provide honest answers to the following questions waiting for answers.

    ———

    from
    AV Editor editor@addisvoice.com

    sender time
    Sent at 14:41 (GMT-04:00). Current time there: 12:58. ✆

    to
    David Borgida

    cc
    xxxxxx@bbg.gov,
    xxxxxx@bbg.gov,
    Bruce Sherman ,
    Letitia King ,
    xxxxxking@voanews.com

    date
    18 July 2011 14:41

    subject
    VOA censorship row

    )

    Dear Mr. David Borgida,

    First of all, I would like to thank you for your cooperation despite the fact that the information I have been getting from VOA lacks details.
    As a follow-up to a story I published today, VOA censorship chief revealed , I would like to pose a few more questions.
    1. Addis Voice has learned that Ms. Gwen Dillard, VAO Director of Africa Division, has told Horn of Africa staff members that VOA will give less attention to the Diaspora and political matters. Is this a position consistent with VOA policies? Has there been any shift in the editorial policy of VOA?
    2. VOA did not cover the Ethiopian Sports Federation in North America (ESFNA) festival held in Atlanta, July 3-July 9. Why did VOA decide not to cover the event, which is the biggest annual cultural and sports festival among Ethiopians in the Diaspora?
    3. We have also confirmed that VOA is not airing comments about current developments at VOA related to allegations of censorship and malpractice. Why is that?
    4. Mr. David Arnold has been reinstated after he was suspended. But we have now confirmed that his statements in the June 23rd report contained no factual inaccuracies. So what was the ground for his suspension? After he was reinstated, he was told that he would no longer serve as the Horn of Africa chief. What was the basis for this decision?
    5. VOA has been investigating allegations made by the Ethiopian government. Much of the allegation is focused on the opinion of its critics. Was the investigation proper given the fact it was based on opinions, not factual errors?
    6. Addis Voice has been publishing investigative reports on VOA. What are your reactions on the stories published so far? Are there any factual inaccuracies? If yes, could you please identify them and give the correct version of facts or events?
    I look forward to hearing from you soon.
    Best regards
    Abebe Gellaw
    Editor/ Addisvoice.com
    A note to readers:

    On July 21, Ethiopian Review website had published a “correction and apology” regarding my story, VOA censorship chief revealed. I complained to the editor, Mr. Elias Kifle, that I issued neither a correction nor an apology to Ms. Gwen Dillard. Elias admitted the mistake and removed the correction promptly. I am glad that the issue was resolved amicably.

    Addis Voice makes sure that its reporting is 100 percent accurate. If we need to make any corrections or apologies, it must be noted we will do so as a matter of urgency.

    ——————————————————————————–
    Ethiomedia.com – An African-American news and views website.
    Copyright 2010 Ethiomedia.com. Email: editor@ethiomedia.com

    Reply

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