A rough guide to Defamation - who is liable?

1. A rough guide to Defamation - who is liable? By Jack Lee – Managing Director of Scrapbook Development Limited.

2. As the managing director of a small software development company Scrapbook Development Limited, I am increasingly conscious of how we present ourselves to our customers and business partners and the possible consequences of poorly worded or ill conceived statements. • Websites, message board and social media can be excellent cost efficient ways of networking, advertising and accessing a wider knowledge base, however they can also be a potential minefield for employers in terms of monitoring staff usage and preventing the release of defamatory material.

3. Why is it relevant? • As a result of advances in telecommunications and electronic messaging companies are at an increased risk of legal action. • Vicarious liability – liability for the actions of others e.g. employees, service users.

4. Recent events • Burger king’s twitter was hacked on the 18th of February, its profile picture was changed to a McDonalds logo and numerous comments were made that could damage the companies reputation. • The comments included, obscenities, racial slurs and references to drug use.

5. What is a defamatory comment? • Defamation – making untrue, unwarranted comments about an individual which lowers their standing in the eyes of right thinking members of society. • Can apply to an incorporated company through the fact it is a separate legal personality – hence Burger King can be defamed.

6. Ingredients of Defamation: Statement must be: • Injurious to reputation or dignity. • published or communicated in some way, publication an essential element – jurisdictional issue. • The recipient of the statement must understand its connection with the person allegedly defamed.

7. Libel and Slander • Under English law defamation is split into two categories: Libel and Slander. • Libel: law of libel applies to comments which are recorded in some permanent form – Burger Kings twitter account has some degree of permanence as would an email or the printed press. • Slander: comments made in a more transient nature e.g. comments made during a heated argument, it could be argued instant messaging also falls under this too.

8. Liability: Personal liability : • in a civil jurisdiction, defamation often an aspect of criminal law, however this is sometimes supported by civil damages. • In a common law jurisdiction such as the UK defamation is usually discussed in terms of tortious injury to reputation.

9. Employers liability: • Employers may be vicariously liable for the actions of their employees. • The chances of this happening have increased with more companies using email as a communication method and more employees using social media sites e.g. Twitter. • In the US there have been a number of cases where companies have been sued for millions by employees alleging that fellow workers had engaged in electronic harassment – posting abusive/offensive messages.

10. Cairns vModi 2012 EWHC 756 (QB) • IPL chairman Modi implicated Cairns in match fixing over twitter in 2010 – cited this as reason for his removal from IPL auction list. • Tweet was deemed defamatory – Cairns awarded £3,750 per word, total of £90,000 and loosing party had to pay legal costs in the £1,000,000 region. • Prime example of monetary and PR damage that can be caused as a result of a rogue tweet from an employee.

11. What can Employers do? • To minimise risk of liability it would be advisable employers should indicate clearly in a staff handbook or contracts of employment what uses may or may not be made of electronic communications. • Employers may even be tempted to use packages to monitor communication within the workplace – there is an argument that professionals should be trusted with technologies that could benefit/develop their career – they have built their career up surely they wouldn’t want to harm it.

12. ISP liability: • Liability may also fall on those, “who assist in the propagation of a libel” – this can include those who form part of the supply chain like an ISP. • Cubby (1991): ISP provided access to a bulletin board but exerted no scrutiny or editorial control – only a distributor so not liable for dissemination. • Stratton (1995): ISP did perform screening function for bulletin board so court deemed it a publisher not a distributor making it liable for defamatory comments.

13. Conclusion: • Overly policing defamation could lead to a chilling effect on free speech and prevent the publication of stories by the media even though it may be in the public interest. • ISP and employer liability is controversial considering, the increasing volume of traffic on the internet and the infeasibility of screening all content.

14. Bibliography: • Lloyd J, Information Technology Law, 5th Edition, Oxford University Press, Oxford, 2008 • Murray A, Information Technology Law, The Law and Society, Oxford University Press, Oxford, 2010 • How that tweet could end up costing your company more than you’ve budgeted for, Schillings, 2012