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Online Defamation - Prioritise Protecting Your Reputation

09 March 2010 #Dispute Resolution


This doesn`t affect me... does it?

The online world of blogging, networking and reviewing is a hive of activity and discussion but most businesses would not give it a second thought in the course of their working day. 

There are an increasing number of cases where disgruntled customers, contacts and even employees are venting their feelings online, either on public forums such as blogs or social networking sites or even on their own purpose-built websites.

What is said online can have a huge impact on your business. Consumers are increasingly internet savvy and will search for details of what they are going to buy and where they should buy it from before they set foot through your door. Similarly businesses who are looking for suppliers, partners or contractors are more and more likely to "Google" the prospective candidates to see what, if anything, has been said online. If there are derogatory comments posted about your business or your staff online it may put off potential customers, clients and businesses. 

What is defamation and what is acceptable?

Publication (online or elsewhere) of disparaging comments to a third party will be defamatory generally speaking if the comment is untrue and damages the reputation of an individual, company or firm.  There are several tests for what counts as a defamatory comment, including (1) those that lower reputation in the eyes of right thinking members of society generally, and (2) those which expose the victim to hatred, contempt or ridicule. The general law of defamation is applied to  defamation online.

However, there is a thin line between defamation and the protection of your business` reputation and the free speech or expression of others, which is protected by Article 12 of the Human Rights Act 1998.

What does "publication" mean online?

Statements which are made online can, in theory, be read anywhere in the world. But does this mean that they are "published" and can therefore form the basis of a claim in every country?

The case of Jameel v Dow Jones & Co Inc in 2005 suggests that the answer to this will depend on how many people actually read the material in the jurisdiction. The facts of the case were unusual. A Saudi businessman sued the publishers of the Wall Street Journal On-line over an article on its website. However he was only identified as the subject of the defamatory allegation to readers who clicked on a link to a further web page, where he was named. It transpired that, within the jurisdiction of England and Wales, there were only five such readers beside the claimant himself: three were the advisors and close business associates of the claimant and the remaining two had no knowledge of the claimant or any recollection of seeing his name on the list. The Court of Appeal decided that, in order for a claim to proceed in England and Wales, there must be a publication in this jurisdiction which is "significant" or which amounts to a "substantial" tort. That test was not satisfied by the five "publications" actually identified and the court stayed the claim as an abuse of process.

Free speech vs Defamation - where is the line drawn?

The Court has considered when blogging oversteps the mark from free speech into defamation in a case concerning a fans` website for Sheffield Wednesday FC. Various disgruntled fans posted comments on the site to the effect that Club officials were untrustworthy and dishonest.  The Club applied to Court for an Order that the operator of the website disclose the identities of the individuals posting the comments so that it could sue those individuals. 

The Judge decided that seven of the 11 comments complained about were "saloon bar moanings", which were critical and slightly abusive, but did not justify disclosure of the identity of the blogger. However, the remaining comments alleged greed and dishonest behaviour by Club officials, which would support a claim for defamation. The Judge ordered that the identity of these four bloggers be disclosed.

Another case concerned the website Dads Place, which had been set up to discuss possible injustices in the Family Court.  A series of serious allegations against a housing group were posted on the site. The group and some of its employees, including its chief executive, launched a defamation claim against the individuals behind the site.

The claimants successfully established the identity of the individuals behind the site, which resulted in agreed compensation of £119,000, including £100,000 paid to the housing group`s chief executive. These sums are believed to be the largest pay out for an Internet defamation case to date.

It is therefore important to be aware of what is being said about your business and your staff online and to take action as soon as possible if comments tip over from critical to defamatory in order to protect the reputation of your business.

Court action for defamation is generally regarded as the playground of the rich and famous because of the costs involved. This may well change in the near future, particularly if the Defamation Proceedings Costs Management Scheme which is currently being piloted in the Royal Courts of Justice and the District Registry at Manchester is a success. However, even if costs become less prohibitive, prevention is always better than cure.

How can you protect your business and your reputation?

Consider searching for comments about your business online from time to time - in particular "Google" yourself. This way you can see exactly what your potential customers, clients and business associates are seeing when they carry out the same search. Ask others how they heard of your business to elicit any details about online comments. 

If there are comments online which are untrue and damaging to the reputation of your business:

  • Check the strict meaning of the words used - are they simply critical or are they offensive?  Are they true?
  • It is not only the writer of the comment who is liable - the website ‘hosting` the comment may also be considered a ‘publisher` of the comment and may therefore be similarly liable. Action against the host or ISP should be considered.
  • Although defamation actions can be expensive, a strongly worded letter from a solicitor can be enough for comments to be removed by the author or the hosting website.
  • Act quickly - not only will this limit the impact of the online comments but you only have one year in which to bring legal action against the publisher. Before resorting to litigation you ought to have tried to resolve the dispute via correspondence and there is a formal protocol for pre-court action which should be complied with.

Clarkslegal has a fixed fee service for defamation on the internet, details are on Clarkslegal.com.

Clarkslegal, specialist Dispute Resolution lawyers in London, Reading and throughout the Thames Valley.
For further information about this or any other Dispute Resolution matter please contact Clarkslegal's dispute resolution team by email at disputeresolution@clarkslegal.com by telephone 020 7539 8000 (London office), 0118 958 5321 (Reading office) or by completing the form on this page.

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