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Defamation Law as it Applies on the Internet

Meaning of Libel and Slander and Their Relationship with the Law of Defamation

Libel and slander are the two limbs of the tort of defamation. There has been some debate as to whether postings on the Internet amount to libel or slander. Libel is the publication in the permanent form of a defamatory statement. Slander is its publication in transitory form. It is generally accepted that defamatory statements on web pages are to be regarded as libel, whereas, in the case of Smith v ADVFN Plc and others the High Court classified chat on an Internet bulletin board as more akin to slander than libel. An important difference between the two is that for slander the claimant will often have to prove that he has suffered some actual financial loss, but this is not necessary in the case of libel.

Primary Publishers vs. Secondary Publishers

For a defendant to be liable for defamation, he must be a publisher of the defamatory statement. The definition of publisher at common law includes anyone who participated in the publication of a defamatory statement. This is very wide, encompassing both primary and secondary publishers. A primary publisher of defamatory material is one who exercises direct editorial control over the published statements. This is defined in section 1(2) of the Defamation Act (and will include authors, editors and publishing houses).

Limitation Period for Making a Claim of Defamation

Under section 4(a) of the Limitation Act 1980, a plaintiff has only one year from the date of publication of a defamatory statement to sue for defamation. This rule is subject to the court’s broad discretion to extend the limitation period in circumstances where it is equitable to do so. The court will have regard to a number of prescribed factors, such as the reasons for the delay and the effect of the delay on the reliability of evidence. A fresh cause of action for defamation arises each time a defamatory statement is published (Duke of Brunswick v Harmer (1849) 14 QB 185). This means that the limitation period for bringing an action is extended each time the original defamatory comments are republished

Defence Raised by Intermediaries

Section 1 of the Defamation Act provides a defence to protect intermediaries who could otherwise be liable for publishing a defamatory statement on the Internet. This codifies what had previously been described at common law as the “innocent dissemination defence.

PRACTICAL APPLICATION OF THE LAW OF DEFAMATION AND THE INTERNET

This case arose from a defamatory 270 A UK Law Perspective statement posted on a Usenet newsgroup which Demon Internet (the defendant) carried and stored as part of its ISP services. A critical feature of the case was that Professor Godfrey sent Demon fax informing it of the defamatory statement and requesting its removal. Despite having the facilities to remove the statement, Demon chose to ignore the complaint and allowed the statement to remain on its server for a further ten days.

Orders to Disclose Identity of Those Responsible for Defamatory Statements

In October 2007 the High Court ordered the operator of a football club fan website to disclose the identity of five users of the site in relation to the posting of allegedly defamatory messages concerning the club’s management (Sheffield Wednesday Football Club Limited and others v Neil Hargreaves [2007] EWHC 2375 (QB), 18 October 2007).

However, the court refused to disclose the identity of nine other users, finding that their messages were of a more trivial nature. The court set out some clear guidelines as to when a court can require a website operator to disclose the source of defamatory material by way of a Norwich Pharmacal order, which builds on the principles first set out in the case of Totalise PLC

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