Legal responsibility online: are you left carrying the can? ( #defamation #blogging )

By MARK PEARSON

[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).]

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The courts have long held that anyone having direct responsibility for a publication is legally liable for it, so if your blog or comment is on the website or social media site of another organisation, both you as the writer and whoever is hosting your work can be sued for defamation. (Some jurisdictions – most notably the US – offer strong defences to the hosts of third party comments.)

If someone edits or moderates your work before it is published, they too share the burden of legal liability. That happened recently to the News Limited website Perthnow, when it was ordered to pay $12,000 compensation to a West Australian mother over racist comments posted about her deceased teenage sons. The comments had been approved by a moderator.

If anyone republishes your work, through syndication or perhaps even through retweeting or forwarding your defamatory material, they also are also liable. Even someone who inserts a hyperlink to libellous material can be sued for defamation in some places, although the Supreme Court of Canada rejected this position in a landmark decision last year.

Plaintiffs will sue the writer, editor or host organisation for a range of reasons. Sometimes they just want to gag the discussion, so they issue a defamation writ to chill the criticism. This is known as a ‘SLAPP’ writ – ‘Strategic Lawsuits Against Public Participation’ – and in some countries they are simply thrown out of court as an affront to free expression. Others allow them. Plaintiffs often want to get the highest possible damages award from someone who can afford to pay it, so they might bypass the original impoverished blogger and sue the wealthier company that republished the material. Sometimes they enjoin all of them in their action, although this adds to their legal costs if they lose.

As the Australian High Court ruled in the Gutnick case in 2002, publication happens whenever and wherever someone downloads it. If you have published something defamatory about someone who is unknown in your own state or country you are probably safe from suit or prosecution until you travel to the place where they do have a reputation.

They would have to prove they could be identified from the material you posted. Of course, if you have named somebody they are identifiable, but what if you stop short of naming them but use other identifiers? For example, what if your blog questioned the ability of ‘a prominent 21st Avenue cosmetic surgeon responsible for the fat lips and lopsided breasts of at least three Oscar winners’? You would be much better taking legal advice first and actually naming the surgeon if you have a solid defence available to you. Why? Because there might well be other surgeons who meet this description, and you would have a hard time defending a suit from them if you didn’t even know they existed.

If your description is broad enough you will normally be reasonably safe. So if you had made your description fairly general – ‘an LA cosmetic surgeon’ – the group would be too large for any single surgeon to be able to prove you were talking about them. (They say there are almost as many cosmetic surgeons as lawyers in LA!)

Of course, if you decide after taking legal advice to actually name someone you need to ensure you use enough identifiers to ensure they will not be mistaken for someone else. That’s why court reports in the news usually state the full name, suburb, occupation and age of the accused person. Otherwise someone by the same name might show their reputation was damaged by proving their friends and colleagues thought they were the rapist, murderer or drug dealer you were writing about.

Your legal responsibility might even extend to pressing the ‘Like’ button on Facebook, as courts struggle with the legal status of this symbol – even in the US. See some useful analysis of this here.

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.

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