Issue of the e-libel trap is reinforced by recent royal scandal and the Jonsson rape case

The recent naming by an Italian Newspaper on its website of the royal aide at the centre of the rape allegations and the similar naming of the presenter at the centre of the Ulrika Jonsson rape allegations on various chat sites, well before the presenter’s name appeared in the papers, has brought the issue of internet libel back into the spotlight.

Internet communication allows the instant, worldwide dissemination of information and this has given rise to a plethora of legal issues. Online newspapers and magazines with discussion areas and message boards by now are acutely aware of the possibility of defamatory material being disseminated via their websites.

An aggrieved party can pursue the author of any defamatory material, but when factors such as anonymity of communication, encryption techniques, impecuniosity, or an author safely tucked away in a remote country, come into play, it is far easier and generally more effective to go for the publisher.

Section 1 of the Defamation Act 1996 does provide a defence of innocent dissemination. But the operator of the website will not be able to avail itself of this protection if it is put on notice of the defamatory matter that has been posted (Godfrey v Demon Internet).

Once put on notice, the online newspaper or magazine becomes a publisher. The choices then are either to remove the material in its entirety, to attach some form of statement to it putting others who access it on notice that it is defamatory, or to carry out sufficient investigation to confirm that while it may be defamatory, it is not libellous, allowing it to remain on the site. The second of these options most probably will only suffice if followed up with the third option. The third route will involve considerable time and costs being incurred and, therefore, it is the first option that is likely to be adopted in most instances.

Unfortunately, this will mean that statements that are not in fact libellous, but merely defamatory, will be removed. No doubt, this will be of some considerable concern to those who hold the principle of freedom of expression so close to their hearts.

To avoid these potential difficulties, a number of companies, newspapers and indeed Government departments, employ staff whose specific role it is to monitor their message boards regularly, to identify and remove potentially libellous material. Others go so far as to vet all messages before they are posted.

A strange anomaly occurs, though, in these attempts to behave responsibly. It is questionable whether, where monitoring takes place, the website operator could later rely on the defence afforded by the 1996 act, namely that he "did not know, and had no reason to believe what he did caused or contributed to the publication of a defamatory statement".

So for those defamatory statements that have been reviewed and are allowed to remain on the website unaltered (whether by choice or because they slip through the net) the site operator could find itself regarded as having automatically been put on notice by virtue of the monitoring and having closed off a potential defence that would otherwise be available had the message been posted without any checks and the operator been entirely unaware of it.  This in an age where responsible journalism is to be encouraged.

Laws created for an old world order cannot be used to police the internet in the same way.

Hopefully, however, as far as the media is concerned, being entirely aware of the legal issues surrounding the laws of libel, such vetting should in reality prove to be a prudent and cost-effective step.

 

Monica Bhogal is a media lawyer at Charles Russell

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