Are you guilty of defamation?

Social Networking is a phenomenon that has exploded over the course of the last five years. The likes of Myspace, Facebook and Twitter have made it very easy for people to comment on issues of the day in a public way. The problem with having access to these sites 24/7 is that people will often make comments in the heat of the moment, without thinking. Sometimes these comments are offensive, and sometimes those offensive comments stray into the area of being potentially defamatory.
 

Obviously, if someone makes a defamatory comment on a site like Facebook, in the absence of any defence, that individual will be liable for the comments made. Furthermore internet service providers can be forced to disclose the name and address of any otherwise anonymous poster or blogger in certain circumstances.

Who to sue

Often in these situations you will have individuals who are not financially worth pursuing, so increasingly people are looking to the operators of websites to be liable as secondary infringers for publishing defamatory comments.

What you can do to avoid being liable

Operators of any websites that allow user generated content need to bear in mind that if you allow people to post comments in forums, chatrooms, message boards, upload photographs, video clips or anything where comments might be made and published, including on any internal intranet pages, YOU, as the operator of the website could be held liable for any defamatory comments posted, unless you can show that:

• You are not the author editor or [commercial] publisher of the statement;
• You took reasonable care in relation to the publication; and
• You did not know or have reason to believe that your actions caused or contributed to
  the publication of the defamatory statement

To moderate or not to moderate…

If you operate a website where any kind of user generated content is uploaded you should consider whether you plan to moderate the site in any way. At one extreme you could moderate every single comment that is posted and only upload it once it has been vetted. Aside from the obvious drawbacks of how time consuming this may be, together with the loss of the instantaneous aspect of it, you also are put on notice of any comments, so if you publish a defamatory statement you will not be able to rely on the defence of innocent dissemination.

User terms

If you decide not to moderate, or only moderate in a spot-check after-the-event manner, the most important thing you will need is clear and robust user terms for anyone who uploads content. You will need to ensure that you reserve your rights in relation to what you can take down and the reasons for doing so, so that if you are notified of complaints about certain comments or users you can take down comments and/or ban users. A common tactic is to put a button on each post saying “report” or “notify” which makes it easy for users to notify you if any posts are in contravention of the rules of the website.

Remember to always act quickly as soon as you have been notified of any problems. For further advice or guidance contact Shelagh Legge on 0161 234 8811 or email shelaghlegge@georgedavies.co.uk