May 18 2008
In the US, the right to freedom of expression is enshrined in the Constitution. In the UK, we have no such guarantee. Say the wrong thing, and you could find yourself seriously out of pocket as the legal machine grinds you to dust. In this, the first part of an informal guide to the minefield of Britain's libel laws, Cheadleender dons a silly wig and calls for "Order"!
Disclaimer: IANAL - Internet speak which means "I am not a lawyer"; should you end up in court please don't rely on anything I say here in your defence! However, I was a Demon Internet customer before, during and after the first ever case brought to court which defined the responsibilities of ISPs, web hosts and by extension moderators and editors of message boards - Godfrey v Demon Internet Ltd - and I've followed developments since with interest.
What about my rights? What about freedom of expression? I'm entitled to say what I want and I object to being censored!
In the UK you do not have a right to free speech - speech here has always been limited by law. Civil actions for damages occurred as far back as the reign of Edward I (1272-1307), the first fully reported case occurred during the reign of James I. The American Constitution details freedoms to which their citizens are entitled but they don't apply here! You can't say "but I'm posting on a site which is hosted in the States" so their law should apply. Jurisdiction is an essay in itself, if the limit of your boredom threshold hasn't been reached by the end of this I will come back to that complex problem later. For now, take it from me, it won't work.
Is it libel or slander? Actually it's defamation. There are two versions of defamation, libel and slander. Libel is when the defamation is written down (including email, message boards and websites), and slander is when the words are spoken. If it's in writing then of course it becomes very much easier to prove!
Defamation: English law allows actions for libel for any published statements which are alleged to defame "a named or identifiable individual or individuals in a manner which causes them loss in their trade or profession, or causes a reasonable person to think worse of him, her or them."
The act which matters is the Defamation Act 1996. The act is all about protecting reputation. Words are defamatory if they "tend to reduce the reputation of the claimant in the minds of right thinking members of the public."
The judge in Godfrey v Demon Internet made very clear posting on the internet is publishing in the same way as printing in a newspaper, magazine or book.
Named or Identifiable: To use a recent example - if you said "one of our players threw a punch at another" your post is not libellous. Mention names, however, and you are in trouble. If you said "one of our players threw a punch at another and that's the real reason we've released him" again you are on tricky ground. How many players have been released recently? If it's quite a few then the player might not be readily identifiable and you could get away with it, if it's just one and we can all guess who you mean then you have a problem! If you say he threw a punch at one of the coaches identification is easier as we only have to perm 1 from 3 but you would probably still be ok, again mention a name and your problems begin.
But I didn't use his real name, only a nickname! No, that doesn't work either - You can't defame a nickname if no one knows who it is - but if the nickname is one by which the player can be readily identified then you're still in trouble.
But saying he punched someone wouldn't cause him loss in his trade or profession, or cause a reasonable person to think worse of him!
Well how would you like it on your CV? I got sacked for punching a colleague isn't likely to improve your employment prospects when you apply for your next job! You could argue the situation might be different for a professional rugby player where a certain amount of physicality is inherent in the game but do you really want to have to go to court with that argument? I'll come on to the subject of damages in a later essay, suffice it say for now if said player was denied a lucrative contract because such a statement was published and allowed to stand then the price you might have to pay could be very high indeed!
If you refer to a coach whose role will likely include the need for extensive man management skills then you could certainly be causing a reasonable person to think less of his ability to perform his role.
But it's true! Truth is indeed a defence to the allegation. However, in the UK, if someone thinks that what you wrote about them is either defamatory or damaging, the burden will be on you to prove that your comments are true in court. In other words, if you make the claim, you're the one who has to prove it! Bear in mind, if the allegation goes this far you will have had to take expensive legal advice, hire a specialist solicitor and barrister and prepare for your day in court. Your proof will need to be very solid and your pockets will need to be very deep!
Can you prove A threw the first punch, can you prove it was aimed at B, can you prove B was actively involved and not just trying to break things up, most importantly can you prove it's why A was released from his contract? Every part of the libel has to be true for your defence to stand. .
I was only repeating what I was told! Anyone who repeats allegations can also be sued. This is important. Repeating allegations without making sure they are true is a very good way to get yourself knee deep in litigation. Another spin off from the Godfrey v Demon case means just providing a link to a post which is libellous repeats the libel and you can be sued for it. Part of the Usenet fun during those Demon days was seeing how many links, to a link, to a link, to a link one could get away with before the writ arrived. The answer was not many at all!
If someone tells you something verbally they can be guilty of slander, repeat it in writing you are guilty of libel. There is no need to prove the slander for the libel to stand so the person who told you might be spared but you end up in court!
Other defences: There are several other defences to libel including public interest and justification but as with everything to do with the law they are complicated and it is seldom easy to win your case. Both involve saying I was justified, or there was a public interest in saying A because it is true - if the truth part fails so does your defence.
There is also a defence of 'fair comment' which is somewhat
vague but is there to stop someone being sued for saying they don't like Tesco
or McDonalds or indeed CheadleEnder
You are allowed to say that - even it could damage them financially (or earn you a whack over the back of the head with a wet fish in the case of the latter!). That's the law.
You can't be sued for "opinion" - however if fact and opinion are mixed together you can be guilty - try saying publicly "I don't like McDonald's because they use dog meat in their burgers" and see what the result is! Saying "I don't like McDonalds" is perfectly ok, say they use dog meat and you are in serious trouble. (For clarification and the avoidance of legal writ - McDonald's DO NOT use dog meat in their burgers, I'm simply using it as an example!)
End of part one:
Here endeth the first lesson. My intention has been to give you a clearer understanding of what the law is and how it works. I doubt having a valid defence will be any consolation if you end up bankrupt as a result of a posting. Please read this and think carefully before you post.
Our intention as editors is to help you avoid ending up in court.
Part Two will look at the effect enforcement of this legislation has had on the internet, it will explain "Notice and Take Down", how it affects us as editors and you as posters. It will also include recent cases.