Defamation Act 2013

[CleverClogs]

Re: Defamation Act 2013

Here is a post PT made on another forum which lists the common defences in defamation and slander cases. My favourite is Number 7 where in Scots law saying something libellous "in the heat of an argument" is allowable. Only in Scotland eh

Common defences to libel and slander

• That the alleged wrong-doer was not the publisher of the statement;
• That the statement did not refer to the alleged victim;
• That the statement's meaning was not defamatory;
• That the statement was true;
• That the statement was fair comment on a matter of public interest;
• In an action for slander under English law, that the statement caused no loss to the alleged victim; or
• In a defamation action under Scots law, that the statement was made in the heat of an argument.

Fixed.

How about a "statement by implication", whereby a spurned, would-be lover affixed a small number of stickers to the doors of a few rooms in student accommodation, declaring "I've not slept with Elspeth McShaggable."? (name changed)

The implication there - and the defamation arising therefore - was that all those persons whose door did not bear a sticker had enjoyed at least a moment of intimacy with the aforementioned wench, thereby impugning her chastity or fidelity.

(This was/is not a hypothetical case.)

[FlamingParrot]

Re: Defamation Act 2013

Likewise, I already knew something of the "libel by parrot" case, which was cited by HHJ Salmon when he concluded that the alleged defamation by signal flags by Albert Haddock was, in anything, slander rather than libel and that the plaintiff (as the claimant was then called) would need to prove damages.

When I first read this, I thought you were going to refer to me! :scared:

There's no doubt in my mind that the *bullies* to whom you refer (no names mentioned to avoid a libel complaint) will use this new Act to their advantage. It'll be an easy way to cleanse websites of justifiable criticism of their alleged heinous practices.

If you have the rollocks to post sumit INTENTIALLY that is defamatory, then you should have the rollocks to stand by what you wrote and if you haven't got the rollocks to stand by what you say then DON'T write it in the first place

That's precisely the point, many people, especially the *bullies*, consider anything they don't like as defamatory, even when it's true. To some people, criticism = defamation. :mad2:

As EXC has said defamation is a grey area. I'll add to that that defamation is also subjective. Something which is water off a duck's back to a thick-skinned person can be devastating to others. Max Clifford says "there is no such thing as bad publicity" and sometimes I think he has a point (except in the event of the recent eleven alleged indecent assault charges against minors obviously).

As someone with a skin thinner than onion skin, I fully concur with the above. :sad:

We had a guy once compile a list of all swear words to add to the swear filter..... most of them I had never heard of, let alone knew the meaning of.

You obviously didn't check with Cloggy! msl: msl: msl:

[charitynjw]

Re: Defamation Act 2013

To quote the famous (if unreported) "libel by parrot" case, the statement uttered by the trained macaw of "Councillor Wart has not washed today!" may be defamatory and it may have been libel rather slander to teach that to a parrot as it could be said to have been a biological form of a permanent recording, but if the phrase merely questioned the bathing habits of Councillor Wart, would that necessarily have been defamatory?

Little-known fact*

The bird was found guilty & incarcerated in a fridge for 30 days.
Upon release it apologised unreservedly, & respectfully asked "What the hell did the chicken say to deserve that!"

*Ok, it might not be true.

[Inca]

Re: Defamation Act 2013

If I say something potentially libellous/slanderous/defamatory on here I'm depending on Site Team to kick it off and pm me with their reasons,,purely and simply because I don't yet understand the Act and I'm not prepared to lose all my goods and chattels in a court case just cos someone pissed me off enough for me to defame them,
So far as I have read,,the Act seems sensible..........

[The Prisoner]

Re: Defamation Act 2013

Hello everyone.

I've read through this topic (several times) with great interest, as I operate a private bulletin board for a group of professional people working in a particular field. I'm in no way a legal person, so I have some questions regarding the Regulations and how they might be applied in our case and I'd be very grateful for some guidance if possible.

The Regulations seem to make a good job of covering Operators of bulletin boards that are accessible to the general public, and where Posters are all-but anonymous, using pseudonyms to mask their real identities and perhaps even email addresses that they do not use anywhere else.

But my bulletin board is private - in the sense that only registered users can view any of its contents, including its Member List - although I've been given to understand that any allegedly defamatory comment posted there is still considered to be in the "public domain" in the eyes of the law because it's been seen by "third parties", i.e. the other users of the board. All our members are registered under their real names, so identifying a Poster is not difficult for me as the Operator or for other members with access to the board.

My board has Terms & Conditions that prohibit the dissemination of the board's contents to outside persons or entities by any means, but I'm wondering how these Regulations should be acted upon in a couple of potential situations that might occur:

1) A member "leaks" sensitive information to someone or a company outside our membership in the form of copied and pasted posts - in this case (and please correct me if I'm wrong), I think the Regulations are pretty clear on how I should act if I receive a Notice of Complaint, because the Complainant would be able to fulfill most if not all of the requirements in the Regulations regarding what information should be included in a valid Notice of Complaint.

But what if:

2) A verbal discussion has taken place, with no Poster's name mentioned, but the Complainant gets a sense of what's been written and then contacts the board Administrators in a state of high dudgeon to insist that whatever's been written about them or their company is removed. In this case, I'm unsure how I should proceed - the Complainant is only reacting to "heresay", and yet they cannot make a proper Notice of Complaint because they do not have access to the posts, I cannot give them access (nor would I want to) without breaking the Terms & Conditions of the board, and therefore they cannot rebut the alleged defamatory comments in the way the Regulations say they should be able to.

In the second scenario, do I therefore have a legal defence under these Regulations to reject their Notice of Complaint on the grounds that it is not valid? Or any other defence?

I also have a question about Moderating posts. Until now, I and my small team of Administrators have monitored all posts made (though we don't Moderate them before they're posted, but after), and we have excised portions of posts where we think the Poster might be on dangerous ground if the content of the post was "leaked" to the person or company mentioned in the post. This has been done on the basis that both I, as the Operator, and they, as the Poster, need to be protected as much as possible from any potential court actions.

But these new Regulations seem to remove the need for any Moderation - if the Posters are now fully responsible in law for what they say in their own posts, and my defence is that I as the Operator didn't post it, then presumably I do not need to be protecting myself by continuing with this Moderation process, because any legal action taken will be now directed specifically at the Poster and not me as the Operator.

Am I correct?

Thank you in advance for any replies to my queries.

And Merry Christmas!

[CleverClogs]

Re: Defamation Act 2013

But my bulletin board is private - in the sense that only registered users can view any of its contents, including its Member List - although I've been given to understand that any allegedly defamatory comment posted there is still considered to be in the "public domain" in the eyes of the law because it's been seen by "third parties", i.e. the other users of the board. All our members are registered under their real names, so identifying a Poster is not difficult for me as the Operator or for other members with access to the board.

Unless you have in place some means to establish that a member has not used a pseudonym - such as requiring them to submit a scan of their driver's licence as well as a recent photo of themselves - you cannot be certain that the name they have supplied is that they use from day to day.

My board has Terms & Conditions that prohibit the dissemination of the board's contents to outside persons or entities by any means,

Do you really suppose that will prevent leaks?

2) A verbal discussion has taken place, with no Poster's name mentioned, but the Complainant gets a sense of what's been written and then contacts the board Administrators in a state of high dudgeon to insist that whatever's been written about them or their company is removed. In this case, I'm unsure how I should proceed - the Complainant is only reacting to "hearsay", and yet they cannot make a proper Notice of Complaint because they do not have access to the posts, I cannot give them access (nor would I want to) without breaking the Terms & Conditions of the board, and therefore they cannot rebut the alleged defamatory comments in the way the Regulations say they should be able to.

Tell them that, until and unless they can complain in the correct form or, at least, identify the post and what they supposed was defamatory, they can get bent.

In the second scenario, do I therefore have a legal defence under these Regulations to reject their Notice of Complaint on the grounds that it is not valid? Or any other defence?

If neither a company nor a person can be identified, then how could a statement be defamatory?

But these new Regulations seem to remove the need for any Moderation - if the Posters are now fully responsible in law for what they say in their own posts, and my defence is that I as the Operator didn't post it, then presumably I do not need to be protecting myself by continuing with this Moderation process, because any legal action taken will be now directed specifically at the Poster and not me as the Operator.

Am I correct?

In my inexpert opinion, no, as that would reverse the decision in the cases of Godfrey v Demon Internet; if the post is still published after a proper complaint has been received, the operator of the system would be liable for its continued publication. In Godfrey, the claimant did not allege that Demon or any member of its staff had posted the contumelious and defamatory statements - the first newsgroup article was posted by someone in Thailand, whilst the second article was essentially a reposting by a Demon customer of that first article - but, that by not removing the posts from news.demon.co.uk and by not issuing a cancel request for the second article, Demon was liable for the continued publication / propagation of the statements.

[The Prisoner]

Re: Defamation Act 2013

Thanks for your swift reply, CleverClogs.

With regard to my comment about being able to identify Posters:

Unless you have in place some means to establish that a member has not used a pseudonym - such as requiring them to submit a scan of their driver's licence as well as a recent photo of themselves - you cannot be certain that the name they have supplied is that they use from day to day.

Owing to the nature of this professional body of people (many of whom are known to one another personally, and others by reputation), along with the detailed information they must provide on the Registration form and the vetting and peer review processes carried out before they are either admitted or rejected, it can be guaranteed that they are who they say they are.

With regard to the Terms & Conditions:

Do you really suppose that will prevent leaks?

No, and it doesn't - but thankfully such episodes have been very few and far between in the decade I've operated my board. Nonetheless, I wanted to get a sense of what the procedure might be if/when it does happen again after 1st January 2014.

With regard to my scenario 2 (how can a Complainant complain if they do not have access to the board and can't see what's been written):

Tell them that, until and unless they can complain in the correct form or, at least, identify the post and what they supposed was defamatory, they can get bent.

Well, that's clear enough!

With regard to my further comment about scenario 2 (can I legally reject a complaint if the Complainant can't properly put the complaint in context because they don't have access to the board):

If neither a company nor a person can be identified, then how could a statement be defamatory?

But my scenario has a member verbally telling an outside person that something derogatory has been written about them within the confines of the bulletin board. The outside person may not have been given all the details of what's been written (or who wrote it), but they have been told (or they can certainly infer) that they are identified and associated with allegedly derogatory comments about them, so therefore, because the post has been put in front of third parties (the other members), surely it is potentially defamatory? I say "potentially" because whether it is or not would ultimately need to be tested by a court - but the process of potentially defaming that outside person has begun with the posting of the comment. Just because they can't see it themselves doesn't mean it's not defamatory. I believe I'd be right in saying that the crucial point in the eyes of the law is the effect the post may have had on third parties' opinions of the Complainant.

(I'm sorry if I'm not explaining myself very well, or being rather long-winded, but as I say I'm no legal expert.)

With regard to my Moderation comment:

In my inexpert opinion, no, as that would reverse the decision in the cases of Godfrey v Demon Internet; if the post is still published after a proper complaint has been received, the operator of the system would be liable for its continued publication. In Godfrey, the claimant did not allege that Demon or any member of its staff had posted the contumelious and defamatory statements - the first newsgroup article was posted by someone in Thailand, whilst the second article was essentially a reposting by a Demon customer of that first article - but, that by not removing the posts from news.demon.co.uk and by not issuing a cancel request for the second article, Demon was liable for the continued publication / propagation of the statements.

But I would be following these new Regulations, which gives clear guidance on what to do if a Notice of Complaint is received, i.e. there are a couple of scenarios where the post would be removed within a given time frame (the Poster gives permission for it to be taken down, or does not respond within five working days), or if it is left up it will be because the Poster refuses permission to have it taken down but has given permission for their contact details to be passed to the Complainant, in which case they can thrash it out between them; or the poster has given me their contact info but refuses permission for it to be passed on AND refused permission for the post to be taken down, in which case (as I understand it) the Complainant has to get a court order compelling me to pass on the contact info that the Poster has provided to me - and again, if that comes to pass, they thrash it out between them. I'm not at all familiar with Godfrey v Demon Internet, but under the new Regulations I don't see how I could be held accountable for keeping the post up, when I'm only following the Regulations that allow a certain time frame for these to-and-fro communications to take place before the situation is resolved one way or the other. I would not keep a post up after the Regulations have been followed and the end result was that the post had to be removed.

In reality, if ever such a Notice of Complaint does arrive in my Inbox, and I follow the procedures and get in touch with the Poster, the chances are that the Poster will take fright and either remove their post themselves, or give me permission to remove it, no matter whether they believe their post to be truthful and factual - the prospect of being tied up for months while being sued for defamation, even if in the end they're found not guilty, would be enough to put off all but the most determined of Posters.

If there are any further views on this subject out there, I'd be very grateful for them.

Thank you.

[EXC]

Re: Defamation Act 2013

But these new Regulations seem to remove the need for any Moderation - if the Posters are now fully responsible in law for what they say in their own posts, and my defence is that I as the Operator didn't post it, then presumably I do not need to be protecting myself by continuing with this Moderation process, because any legal action taken will be now directed specifically at the Poster and not me as the Operator.

Am I correct?

I don't think so. Although following the new regulations might put more onus on the author of the comments the operator still has some potential liability. But I'm sure Amethyst can advise.

[Guest]

Re: Defamation Act 2013

http://www.bbc.co.uk/news/uk-25551640#story_continues_2

[kathmorgan12]

Re: Defamation Act 2013

If you didn't want to disclose your contact details to the complainant or the website operator, then your post would be removed, and that would be the end of the matter.