By VennerRoad, 12th Jan 2015
Is it time the law of defamation was abandoned for cyberspace, at least in part?
Lawrence Godfrey
At one time, the law of libel was like the Ritz, open to all. Even so, it was possible for a determined individual of limited means to bring a successful action for defamation in both the English and the American courts. In October of last year, a GP was awarded £45,000 damages against the Daily Mail newspaper. In February 2000, accountant Morris Riley was awarded £5,000 damages over a defamatory magazine article, while at times people lower down the food chain than doctors and accountants have sued and won damages for both libel and slander.
Since the Wolff reforms (so-called) in England and Wales, the cost of issuing a libel writ has risen astronomically, from a mere £25 in 1993 to over £500 less than a decade later. Nevertheless, it is still possible for mere plebs to sue for defamation, the big question though is should anyone bother if the defamatory material appears only in cyberspace?
The reason for posing this question is not vested interest or to plug an agenda, but pragmatism. In the bad old days – within living memory for some of us – there was no real access to the media. For us little people, the best we could hope for was an occasional letter in the national or more likely the local press. Cyberspace has done away with that, now thanks to that marvellous entity Google and other, not quite so large companies, if you have an Internet connection you can publish a blog, develop your own website, or rant at the world through YouTube. There is a large corporate presence on-line of course, including the mainstream media, but the majority of bloggers and other commentators are ordinary folk worldwide. This is an amazing development that has levelled the playing field for all mankind, but as usual there is a downside.
With a few minor caveats – extreme pornography, open terrorist recruitment, etc – cyberspace is an unregulated medium, and that is the way we – ie 99.9% of the population – want it to be and believe it should be. The downside is that while the Ritz may be open to all in theory, this establishment is open to all in practice, including the evil, the bigoted, the malicious, the deranged, or simply people who have no idea how to evaluate evidence. The proof of this pudding can be found all over especially YouTube where you can find all manner of nonsense, usually and erroneously alluded to as conspiracy theories about the Kennedy Assassination, 9/11, aliens walking among us, ghosts, you name it.
While we may find some of this amusing, it is not so amusing if you are targeted in person and accused of being say a serial rapist – like Bill Cosby – or of being behind the global drug trade – like the Queen. Her Majesty can laugh off such accusations; Mr Cosby is saying nothing...but what if some nutter targets you?
It is not only possible to sue for on-line defamation but there is now a considerable body of case law concerning it. Godfrey v Demon Internet Limited dates to the last Millennium, and what is most interesting about this case is that the defamatory posting was made by an anonymous individual. Dr Godfrey was unable to sue his defamer, so instead he brought an action against the ISP concerned. Demon pleaded innocent dissemination; it is not possible in practice for a mere distributor – Demon in this case – to vet every single publication: book, magazine, newspaper, that it handles, and the law recognises this, but if the distributor is advised of the defamatory content, it should act to remove it. Dr Godfrey argued that Demon did not act quickly enough – ten days.
He won the case, but would it be worthwhile for him to bring that or a similar case today?
In case you are not familiar with it, there is a well-known maxim: Don’t feed the trolls. This means that if you do respond to an offensive or defamatory posting, article or video, you will be inviting more, and may indeed be swamped. We know there are nutters galore out there, if you post regularly to Facebook or any sort of forum, at least one of them will have crossed your path. There is not enough court time in the world to sue every defamatory blogger, video maker or commenter, so why bother? Furthermore, gross libels can be less harmful in cyberspace than small ones. If you are accused of stealing from your employer, your reputation may well be diminished in the eyes of right-thinking men and women. If on the other hand you are accused of kidnapping newborn babies and sacrificing them to Satan, what sensible person would credit such nonsense?
Suppose then we remove the law of libel from most of cyberspace, how would we go about that? We could not remove it from the entire Web because the mainstream media has a heavy presence there, including on social media. But if websites were to be categorised as either mainstream or non-mainstream, perhaps by a simple icon, that would allow the conspiracy cranks and the hatemongers to continue peddling their wares to the gullible, while only those whose offerings were accepted by mainstream sites would be taken seriously.
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