Is defamation in online communities slander or libel?
There’s a distinction in English law between slander and libel. Slander is when a defamatory statement has been made orally. If the statement was made in a permanent form, for example, recording words onto tape or in writing, it would not be slander but libel. The implications of this difference are important. For libel, the victim can claim damages even if they have not suffered financially from the statement. For slander, on the other hand, the victim must prove that actual damage has been caused. Basically, it is much harder to win damages for slander than it is for libel.
To date it has been thought that defamatory comments in online communities, bulletin boards and other chat on the internet are libel. They are published and a permanent record is kept. That’s why I was intrigued to read a report in OutLaw today of a recent judgement that took the opposing view.
Here’s the comments from Mr Justice Eady who tried the case:
“[Bulletin board posts] are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out,” he said in his ruling. “Those who participate know this and expect a certain amount of repartee or ‘give and take’.”
“When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions,” said the ruling. “People do not often take a ‘thread’ and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.”
The facts of the case are complex and involve multiple parties, so I’d recommend reading the full background on OutLaw here.
For me the most interesting comment is that contributions in online communities and forums are “give and take” and like a “casual conversation” rather than published and printed material. This is certainly more akin to the kind of conversations and contributions we see on our communities at FreshNetworks, as I’m sure it is for anybody else with experience in this area.
Some more reading
- So How Do You Measure ROI of Online Communities?
- Record £100,000 online libel damages awarded to social housing firm
- Businessman wins Facebook libel case
- Biggest internet libel payout ever made over ‘malicious’ website
BobbyB:
Interesting that they have decided to view these comments as slanders, even if they may be permanently recorded. For me, the crux of the matter is not the casual nature of the conversations, but the fact that the record is there (potentially) permanently for anyone to see. If you post something defamatory, and others hear about it, they can very easily go and find it, read it in full, show it to their friends etc, and so the defamation spreads further.
It seems like our oldy worldy definitions of ‘permanent’ and ‘transitory’ may be in need of a shake-up in the world of web 2.0.
8 August 2008, 12:34 pmMatt Rhodes:
Hey,
Thanks for the comment. It’s true that it seems a little strange that something that is permanent, searchable and published like this is treated as slander. I’m sure there might be more complexity to the case that we need to uncover but the elements of the judgement that interest me are those that suggest that the nature of the exchange mattered more than the medium / recording of it. The fact that it is a ‘conversation’ seems to have overridden it being recorded for posterity.
Matt
8 August 2008, 3:02 pmEric:
What have US courts held regarding internet transmissions being slander?
1 November 2008, 9:52 pm