Online defamation: Q&A

In these times of austerity, many public bodies are making very difficult decisions which impact on staff and service users. The increased level of awareness and scrutiny of these decisions, coupled with the prevalence of social networking sites and online forums, means that public bodies are fighting a daily battle against critical comments posted online, some of which stray into the realms of libel. Here are the most common questions we receive from our public sector clients about this issue, together with our answers.

1.  How do I know whether a statement is defamatory?

A statement, whether spoken or written, is defamatory if it is said, or sent, to a third party and if it contains an untrue imputation against the reputation of an individual, company or organisation. Whether a statement is defamatory is a question of fact that the court will determine. The court will apply the natural and ordinary meaning of the words used, or any special meaning known to the third party to whom the words were spoken or sent.

2.  Who is responsible for the publication?

The individual posting the comments is primarily liable. However, the operator of the website and the web host may also be liable if they have been made aware of the defamatory material.

3.  Who is entitled to sue?

A defamation claim can be brought by, amongst others, an individual (and in certain circumstances a group of individuals), limited companies, firms and LLPs. A claim cannot currently be brought by local authorities or by central government or by any other democratically elected governmental body. Although it is likely that an NHS Trust is not entitled to take action for the same reasons, it is currently unclear whether the managerial and financial freedom afforded to an NHS Foundation Trust would take them outside the scope of this limitation.

4.  Can a local authority or NHS Trust fund the costs of a claim brought by its employee against a third party?

As the law currently stands, a local authority can fund a claim brought by an individual officer and it can also assist an officer in defending such a claim. The position is, however, different for members where a local authority is only entitled to fund a defence, but not a claim brought by an individual member. The only condition is that the statements made must refer to and be defamatory of the individual concerned. There is currently no bar on NHS Trusts funding a claim brought by its officers or employees.

In all cases you should bear in mind the potential cost, staff time and adverse publicity that a decision to fund or defend a claim could bring.

5. Can I get damages?

Yes, provided you are entitled to make out a claim and you succeed in your claim, the court will award you damages. Damages in a defamation claim are intended to compensate the claimant for the damage caused by the statement to the claimant’s reputation. The current perceived limit for damages in such a claim is £200,000. However damages awards are frequently less than £10,000.

6.  Are there any practical steps I can take to limit the damage caused?

It is always worth checking the website’s content policy as it may be possible to request the removal of defamatory material by contacting the web host direct. Unfortunately, the content policy of a number of popular weblog sites such as Twitter and Google’s Blogger and Blogspot do not contain any such provision. Others, including wordpress.com, do. Although they will be responsible for the publication, the law provides web hosts and operators with a defence to a claim provided that they took reasonable care in relation to the publication, and did not know or had no reason to believe that what they did caused or contributed to the publication. In practice, it is very difficult for web hosts to rely on this defence once they have been put on notice that they are hosting or making available the alleged defamatory material.

In all cases, including those where it is not possible to make out a claim, it is worth considering whether to formally engage with the person making the statement in order to allay their concerns and to provide them with all the relevant facts. This may help prevent further defamatory statements being made. A positive publicity campaign counteracting the adverse comments may also assist.

7.  How can I find out who is running the website?

The operator of a website will often include his or her contact details on the website itself. If it is not obvious, the contact details of the domain name owner will be held by the domain name registrar. Various searches can be carried out to establish this.

8.  How can I find out who posted the statement?

Unless the person posting the comment indicates his or her email address or other contact details on the website, it is often very difficult to determine their identity. It may however be possible to obtain an order from the court requiring the web host to disclose to you the identity of the individual or their IP address.

9.  Can I get the website closed down?

If none of the practical steps set out above succeed, and provided you have put the web host on notice that the site contains defamatory material, you will be entitled to and may succeed in obtaining an injunction against the web host requiring them to remove the material.

10.  Am I liable for statements made by people within my organisation?

Yes, an employer is jointly liable for any defamatory statements made by an employee provided the employee was acting within the scope of his or her employment and authority. The question the court will determine is whether there is a sufficiently close connection between the employment and the defamatory statement.