Wednesday, September 17, 2008

Blogging and defamation

I came across this recent case on blogging and defamation in the UK, its implications still to be explored, but here is the latest press release (authored by S. Tuxford):
"The case of NIGEL SMITH and ADVFN Plc and others[1] concerns the application of the law of defamation to internet blogging. Mr Smith considered a number of statements published about him on a series of internet bulletin boards operated by ADVFN plc to be defamatory. He obtained so-called "Norwich Pharmacal" orders compelling ADVFN plc to release details of the bloggers responsible before bringing defamation proceedings against the persons identified (and ADVFN plc).

Faced with a large number of similar (and in some circumstances related) claims, the Court upheld an earlier order for a stay of all the claims to give each defendant an opportunity of being heard either in an oral hearing or by making written submissions. Of particular interest, and perhaps concern to claimants in defamation actions however, was the Court's characterisation of the alleged defamatory blogs.

A defamatory statement is one which tends to lower the claimant in the estimation of right-thinking members of society. Defamation is either libel or slander; libellous statements are made in permanent form and slander is defamation made in a transitory form. For slander the claimant will often have to prove that he has suffered some actual financial loss. This is not generally necessary in the case of libel, making it a more attractive action for claimants.

As blogs remain displayed online, they may quite reasonably be considered to give rise to libel actions only. The Court (Mr Justice Eady) questioned this analysis, opining that blogs may amount to slander:

"[Blogs] are read by relatively few people, most of whom will share an interest in the subject-matter; they 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; those who participate know this and expect a certain amount of repartee or "give and take"...their identities will often not be known to others. This is no doubt a disinhibiting factor affecting what people are prepared to say in this special environment...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."

However, Mr Justice Eady did note "I would not suggest for a moment that blogging cannot ever form the basis of a legitimate libel claim." so the position is far from certain; whether a defamatory blog amounts to libel or slander will depend on all the circumstances."

Source: Bristows, Sept. 2008

There have been relatively few cases on this, so this strikes me as one worth reading up on.

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