Online defamation raised substantially the same issues as online infringements of copyright. As with copyright, the person making the defamatory statement may well be difficult to trace. Moreover, the online provider, having deeper pockets, will make the more attractive defendant. An online provider is therefore faced with the possibility of liability for defamatory material of which it is not aware and which, given the amount of material likely to be made available online, it could not realistically hope to detect.
Defamation case no 1
Cubby v CompuServe Inc
CompuServe was sued by a person claiming that he had been libelled by an electronic newsletter, Rumorville, carried on the CompuServe service. CompuServe successfully argued that it should not be held liable: the Rumorville newsletter was provided by independent contractors, and it had no more control over it than a library has over copies of newspapers.
Where the online provider attempts to control material on its system, it may expose itself to additional liabilities, as happened in Stratton Oakmont.
Defamation case No 2.
Stratton Oakmont Inc. v Prodigy
The securities investment banking firm of Stratton Oakmont sued the operator of Prodigy Online in relation to statements made by an unidentified poster on Prodigy's Money Talk bulletin. Prodigy argued that it could not be held responsible for the postings of its users, but the judge disagreed: it held that Prodigy had editorial control over the messages, in the Money Talk forum (it used software to monitor the content of messages, and had established guidelines for its user group moderators to follow) and was therefore liable for the content of those messages. The judge expressly stated that he agreed with the decision in the Cubby case, but that the facts in Stratton Oakmont were different.
Although both the cases detailed are American, it seems likely that online providers in the UK will be liable for defamatory material posted on bulletin boards and user groups. In the 1937 case of Byrne v Dean, the secretary of a clubhouse was successfully sued for defamation when an anonymous member pinned a defamatory statement on the clubhouse's notice board.
This situation may soon change, however. The UK Government has recently introduced into the House of Lords the draft Defamation (Responsibility for Publication) Bill, which seeks to exclude the liability of bulletin board and online providers where they do no more that run the technical side of their services, and have no editorial or publishing role. Whether the draft bill actually achieves its intention is another question altogether. As a number of commentators have already pointed out, the exclusion of liability is conditional on the online provider having no publishing role or editorial role; however, if the online provider takes no interest in the material published on its service, it may be appear to be negligent, and for this reason forfeit the Bill's protection. As presently drafted, it provides no safe route for online providers.
This article is correct to the best of our knowledge and belief at the time of publication. It is however, written as a general guide, so it is recommended that specific professional advice is sought before any action is taken.