‘Abigail is so skanky!’ ‘Emily slept at David’s house last night, ho!’ ‘Lorraine is such a whore!’
Now, I’m sure many of us have said such things about others before, but would you post such comments online? I mean, you can post what you like on your personal blog, it is our freedom of speech… right?
‘Anonymous’ blogger Rosemary Port found this out the hard way when a court ordered Google to reveal her identity after she posted defamatory comments about model Liskula Cohen.
Unless you are studying for a Law degree or have taken ‘Law and Ethics in Journalism‘, you probably have never heard of this so-called ‘law of defamation’. Essentially it is a law concerned with material that causes injury to a person’s reputation, without good reason. Such ‘defamatory matter’ is wide in scope and can include an article, letter, gesture, picture, speech, or thing communicated by the internet.
So what does this mean for your freedom of speech?
A balancing act
The courts are constantly trying to balance the damage caused to a person’s reputation and the rights of individuals to free speech. This is by no means an easy task, particularly when it is so hard to prove damage to a person’s reputation. Some have argued that defamation laws go too far in protecting people’s reputations, so far that they ‘muzzle freedom of speech.’
In Australia, despite reforms on defamation law in 2005, there is currently no statute dealing specifically with the internet. This is a major concern because the internet creates an abundance of issues, ethical and legal. More on this below.
People feel that they can hide behind their computer screens, without having to face the repercussions real life involves. Many act as if they can comment anonymously or write under a false name and will never have to answer to the law directly. But as Liskula Cohen proved, this isn’t true. Her attorney Steven Wagner said ‘the internet is no longer a safe harbour for defamatory language’.
‘Enter': as soon as you hit that one little button, your comments, thoughts and opinions will be available to anyone, anywhere. This is the beauty of the internet, but also a prominent defamation dilemma. It can allow claimants to bring a defamation action in the most advantageous jurisdiction, where they have a reputation to protect.
The courts addressed this contentious issue in the case of Dow Jones & Company Inc. v Gutnick in 2002, holding that Mr Gutnick, a Melbourne resident, could bring his defamation action in the Victorian Supreme Court in Australia. This was allowed even though the offending material was created in New York, and uploaded to a server in New Jersey, USA.
Too late to turn back?
It is often just as easy to take content down as it is to post it, so is a statement still defamatory if you later ‘take it down’? The unfortunate answer is ‘yes’. Defamation only requires the material to be published to any ‘third person’ so once this has occurred, it does not matter if the content is later removed. As journalist Milo Yiannopoulos reminds us, ‘the internet remembers’.
Should ‘following’ be the ‘X’-factor?
The requirement of publication to a ‘third person’ means that even if your blog following is less than the number of British ‘Vegemite’ fans, your comments can still be defamatory. As long as the material is published to at least one person, other than you and the supposedly defamed person, defamation can still take place.
Blogging for $$$
There is clearly a contrast between paid online journalists and bloggers; the latter usually write for a hobby or enjoyment. So should content creators, with such different intentions, still be held accountable to the same laws? Should defamation law even apply to non-professional bloggers who often naively, but genuinely, believe that they are free to write their own thoughts and opinions on their blog space, without legal repercussions? It does!
In addition to the initial publisher, Internet Service Providers can also be held liable for defamatory material posted by another, if the court finds the Provider to be acting as a publisher, rather than merely a distributor. However, a recent Canadian ruling makes it clear that posting a hyperlink to defamatory material does not constitute publication.
So you have heard from me, a British Law student, on some of the complexities but read on to hear the opinions of others around the world to whom I spoke about internet defamation.
Professor David Rolph, a leading academic at the University of Sydney, highlighted that a fundamental ‘difficulty in having technologically-specific defences for defamation is that technology can change.’ He recognised that ‘by addressing the here and now might not address problems that might arise in the future’.
Professor Rolph also accepted the lack of knowledge of content providers on the internet who do not realise they are subject to the laws of defamation. He emphasised, however, that ‘ignorance is no defence’ when it comes to defamation.
Journalist and author’s attitude
Professor Mark Pearson of Bond University does not believe legal reforms are necessary to cover advances in technology, contending that current defamation principles can still apply to the internet and social media sites. He did however highlight the jurisdictional difficulties that arise from internet defamation, but pointed out ‘that is not something you can reform easily’.
On his blog, Professor Pearson makes the interesting observation that ‘Twitter users might leave themselves more exposed in the area of defamation because there is so little space in which to give context and balance to their criticism of others.’ This then opens the question of whether the courts should additionally distinguish between different forms of online content.
Professional blogger’s viewpoint
Lynda Castonguay, Law student turned fashion writer currently writing for online magazine Fashion Studio, believes ‘there should be special consideration given to cases involving online content’. However, Castonguay does not believe there should be a distinction between recreational and professional bloggers; ‘a blogger is a blogger’ and all writers should seek out information on how laws can affect them because ‘ignorance is not bliss’.
Castonguay warns that the ‘World Wide Web is not a carte blanche for a tell all. It isn’t a green light to say whatever you want, whenever you want, wherever you want, to whoever you want, in whatever kind of language.’
Non-professional bloggers’ naivety
Neither of the recreational bloggers to whom I spoke had ever heard of the law of defamation, nor were they given any advice or warnings when they created their blogs. Despite this, they both seemed to have their own controlling moral principles.
Tia Simon-Campbell, a blogger from the UK’s London College of Fashion, recognised that ‘people use the internet as a safety barrier’ but for her, ‘if there is something that I wouldn’t say to the person’s face then I wouldn’t write it on my blog.’
Cristine Sanchez, a student from New York City, believes ‘a blog is your personal space where you can freely write about your opinions’. But she is aware that ‘comments may ultimately affect a person’s reputation and may affect some of my viewers’.
So how can you avoid becoming a defamatory defendant?
1) Speak the truth, provable with evidence, not just a belief in its truthfulness.
2) Give your honest opinion and only make fair comments.
3) Thoroughly research to check the reliability of your sources and verify facts.
4) Check out these other tips.
Finally, ‘if it isn’t an opinion piece, leave your opinion out of it.’
Katrina Thomson is a third-year Law LLB student at the University of Leicester, UK, currently on a one-year exchange at La Trobe University. This is her first piece for upstart.