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Defamation on the net

Written By: - Date published: 10:28 am, September 20th, 2014 - Comments Off on Defamation on the net
Categories: internet, law, making shit up - Tags:

Stephen Price wrote on an interesting Appeal court decision that relates to blogging.

In a significant Court of Appeal decision (see Murray v Wishart), hot off the press, the judges have unanimously ruled that a third party publisher (the owner of a Facebook page that contained comments by others) was not liable for other people’s comments simply because he “ought to have known” that they contain defamatory material (even if he didn’t actually know of the content of the comments). So hosts of Facebook pages will only be liable for defamation of posters’ comments if (a) they actually knew about the comments and (b) failed to remove them in a reasonable time in circumstances that give rise to an inference that they were taking responsibility for the comments.

It has always been an issue with blogs and services like facebook about how responsible and liable they are for comments published on their site.

The results of this decision appear to be “it depends”. As Stephen says

The indications in this judgment are that the Courts should assess which analogies are most appropriate in the particular circumstances: for example, is the publisher more like a news vendor (who can be taken to have accepted liablity for the publications being sold, subject to an innocent dissemination defence), or the owner of a public noticeboard (who hasn’t really taken part in publication until they are told someone has posted a defamatory notice)?

We run a policy of not constraining who can leave a comment on this site. So we don’t require information like valid email addresses and running access control in the way that the major blogs of the right do. This policy, coupled with a strong privacy policy,  means that we provide access to as wide a group of people with access to computers as possible.

We also have an active policy about moderation and take active steps to prevent anyone who has violated the policies of this site from publishing comments in violation. Generally these policies act against people trying to disrupt the site with bad faith debating practices (ie trolling), but it also works against people who wish to publish defamatory material.

Paradoxically under this ruling, this actually makes us both less likely to publish defamatory “facts” than a facebook page, and more liable in any defamation action. Fortunately, we can generally rely on the former.

Of course there are instances that slip through. Ian Wishart himself emailed to point one out to me 5 weeks or so ago that we’d missed in the thousands of comments of the election campaign. “shrubbery” has been leaving plaintive comments in the auto-spam ever since. Hopefully the young fool will have read up a little more on law of defamation by the time that they are let out of the dogbox.

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