By MARK PEARSON Follow @Journlaw
[Loosely adapted from my new book - Blogging and Tweeting Without Getting Sued: A global guide to the law for anyone writing online (Allen & Unwin, 2012).]
Defamation law everywhere requires proof that your publication has lowered someone’s standing in the eyes of at least one other person.
It must go to this third person before the ‘reputation’ can be damaged, because your reputation is your standing in the eyes of others.
In other words, if you insult someone in a direct message (DM) to them alone on Twitter, you have not defamed them. But if you repeat the slur to just one other tweep your victim might then have an action in defamation.
From that point on the laws of defamation (libel and slander) vary across jurisdictions, with falsity required as a starting point in some places and defences varying widely.
In many countries defamation is also a crime – known broadly as ‘criminal libel’ – used by some repressive regimes as a weapon of the State against free expression.
We have all seen how a major newspaper or television network can destroy someone’s reputation in an instant, but you might have felt comfortable saying what you like about someone to your handful of blog followers, your 20 Facebook friends or your tribe of chirpy tweeps.
Sorry, but as soon as you say something nasty about someone to a single Facebook friend or to your single Twitter follower you have defamed the victim of your comments. Most of the time this will just cause a little embarrassment to both you and them if they find out, but occasionally a single publication to just one other person can be devastating – and expensive.
If your comment (or defamatory material in some other form like an image or even perhaps a ‘Like’ symbol!) goes to a client of the victim it could cost them a multi-million dollar contract – and you’d be facing that bill in damages if your lawyers can’t find you a good defence.
The name David Milum might not be familiar to you, but he was a pioneer in defamation law … for all the wrong reasons. He ran a political website in Forsyth County, Georgia, and became the first US blogger to lose a libel case when in 2004 he wrote that an attorney had delivered bribes from drug dealers to a judge. The attorney won $50,000 in damages and the appeal court held in 2007 that bloggers and podcasters were just as liable for defamation action as other publishers.
Since then we’ve had the advent of social media and a litany of defamation cases across most platforms worldwide.
Courts can – and do – award substantial damages to someone who has been injured in some way because of your nasty posting. Perhaps they have been traumatised, their relationships have been damaged or they might have lost a lucrative contract. Even the fact that you didn’t mean to defame them will not protect you in most places. In those countries just your act of publication needs to be intentional, not your intent to damage the person’s reputation.
There are several exceptions to this. For example, ISPs usually have a defence to defamation on the websites they host unless the material has been brought to their attention and they have refused to take it down. In the US, this goes further under s. 230 of the Communication Decency Act to give full protection to ‘interactive computer services’, even protecting blog hosts from liability for comments by users. Careful here, though, because the discussants can be sued over their comments if they are identifiable via their IP (Internet protocol) addresses and the host might cough yours up, particularly now that lawyers and private investigators are getting more sophisticated in their digital discovery processes.
Bloggers often mistakenly thought their ISP or host site would be sued for defamation instead of them. Lancashire academic Tracy Williams used a pseudonym to defame a UK Independence Party candidate on a Yahoo! discussion board in 2004. She called him a sexual offender, a racist bigot and a Nazi, and escalated her abuse when he started legal action. The politician won a court order against Yahoo! to reveal her identity and in 2006 she became the first blogger to lose a libel action in the UK High Court and it cost her £10,000 in damages. And in 2011 Twitter was ordered by a Californian court to reveal to South Tyneside Council in the UK the personal details of five users who had allegedly defamed three of its councillors.
See journlaw.com’s DEFAMATION update page for a range of recent defamation cases, many of which have involved social media.
© Mark Pearson 2012
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.