Last week the Twittersphere voiced its disgust at a law firm’s assault on free speech under the hashtag #trafigura.  

Carter-Ruck tried to gag The Guardian from revealing that oil company Trafigura was the subject of a recent question in Parliament concerned with the dumping of toxic waste.  However, the firm was unable to silence the Twittering masses – the issue was one of the social media site’s top trending topics, which is interesting considering nobody was meant to be discussing it in the first place.

Brown: moderate response

Internet providers and bloggers can use a defence of innocent dissemination and website owners can argue they are not strictly publishers but just providing ‘a forum.’

Rob Brown, of Staniforth PR said: “It’s easy for social media organisations to hide behind the fact they’re not publishers of the content, but ultimately they do have to take responsibility and moderate.”

These recent disputes over whether social networking sites, such as Facebook and YouTube, should change their policies on moderation of their users’ posts could have far-reaching consequences for Internet users. 

Mark Lewis, of Stripes Solicitors comments: “In these days of mass internet use on social networking sites it has become inevitable that there is an explosion of libel cases.” 

In the past couple of years the internet has led to an abundance of offensive material and groups that would otherwise have never seen the light of day.  A traditional print journalist could be sent to jail for some of the information that gets leaked on the net.
 

Lewis: urges caution

This may have been a victory for open democracy, but users of social networking sites need to be very careful about what information they choose to post.  These recent stories have brought media law and the threat of draconian injunctions to the forefront of our minds.

 “The way that the law works was designed with newspapers and books in mind.  Traditionally the publishers were liable. Now attacks can be made on the sites that do not even know what has been posted,” adds Lewis.

Updating defamation law to correspond to the Internet is a difficult point to argue, because if the law does change, where will this leave freedom of speech and the champions of the blogosphere?

“Political bloggers, just like political commentators using more traditional media before them, always have to be mindful of what they write and ensure that they do not fall foul of the defamation laws,” says Anthony Buxton of George Davies Solicitors LLP.

“Opinion pieces are always just that - opinions, and these must be careful not to state incorrect facts that could be damaging to someone else.”

On the other hand, some internet users may genuinely believe they are doing their bit for free speech when in fact they are doing a terrible job of dispensing justice.

Buxton: greater clarity needed

It is extremely easy for an Internet user to make a defamatory statement and for millions of people across the world to read it.  This international reach means that those who choose to voice their opinions on forums and networking sites should think twice before hitting the ‘send’ button, because offensive comments could activate libel cases against them.

If the law tightens on internet libel, won’t this allow big corporations to quash employees’ concerns and suppress dissent? 
 
Buxton believes “providing the feedback simply states the truth, with no embellishments or defamatory conclusions drawn, there should not be a problem”.

Things could well get as extreme as labelling consumer reviews as defamatory.  For example what if a touchy business owner feels that a customer’s feedback is potentially damaging to his company’s profile – is this defamatory and should it be removed?

The popularity of social networking sites has uncovered grey areas within defamation law. The law seeks to protect those who are injured by lies. In a democracy we are entitled to free speech, but if defamatory comments impinge on other people’s freedoms these do need to be moderated.
 
As an Internet user, one should bear in mind that you will be held accountable for anything you say.  Yet it is highly unlikely that cases against the sites will be pursued or be successful.  A line has to be drawn between protecting the party’s reputation and making the way for corporate bullying.
 

An expensive business

“The difficulty with libel claims is that the costs of defending the cases is such that even if the article is true, the cost of defending can be so large as to be frightening.”

Lewis is currently defending Dr Peter Wilmshurst, who faces a claim for an interview that he gave in the USA that was published here on the internet: “He will fight to justify his allegations to stop the use of the libel laws preventing free speech. That does not mean to say that it is improper to sue for libel, just that the cost of the case should not distort the ability to express honest criticism.”
 
Buxton thinks existing defamation laws require a review: “In order that we have greater clarity on the situation and on what ‘publishing’ actually means in terms of the web.

“The one year time limit, within which claims must be brought against, obviously seem more fair in the context of publications in newspapers, copies of which would disappear.  However, with cached Internet pages remaining for years after the original content is added to a page, the time limits may need to be re-thought.

“Defamation laws have always had to carefully balance freedom of speech and I think it unlikely that any update to the law would seek to erode freedom of speech.
 
"It is always wise to employ a ‘sleep on it’ attitude with these things and not blog or commentate in anger,” he adds.

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Comments (2)

1  By Gez , on 20-10-2009 19:06 The Trafigura debacle wasn't really about libel. Is it libelous to say, "Paul Farrelly asked a question in Parliament relating to press restrictions regarding accusations that Trafigura dumped toxic waste on the Ivory Coast."    The press weren't allowed to report it but that doesn't mean Parliament can't publish details of the question.  http://www.publications.parliament.uk/pa/cm200809/cmhansrd/cm091013/debtext/91013-0004.htm#09101345000003    Once word is out, should press gagging orders be applied to members of the public on social media sites? Report