Internet defamation lawyer’s guide to online defamation
This guide provides some basic tips on bringing Internet defamation lawsuits.
As the popularity of the Internet and social media sites have grown, so has the number of Internet-related defamation claims.
What is defamation?
UK defamation law is primarily governed by the Defamation Act 2013 (the Act).
A defamatory statement must be to a person or business causing or is likely to cause serious harm to the reputation of a person. If that person is a business trading for profit, then serious harm must have caused or is likely to cause serious financial loss.
What is Internet Defamation
Internet defamation is defamation as defined above that is published via the Internet.
The first thing to consider in a lawsuit for defamation is whether the statement said or written caused serious harm or could potentially cause serious harm to the reputation of the claimant.
Serious harm and individuals
s1(1) of the Act requires a mandatory strikeout of a case if it has not caused or is unlikely to cause serious harm to the reputation of the claimant. If a statement is merely poking fun, then it cannot be said to cause serious harm to reputation. Damage must be proven and can’t be presumed. If the damage caused was minimal and the costs would be disproportionate then the there is a very high probability that the lawsuit will be struck out as an abuse of process.
The court will award substantial damages for damage to an individual’s past and future earnings. Geoffrey Rush was recently awarded $2.9 million in damages based on past and future lost earnings.
Serious harm and corporations
The 2013 Act s1(2) requires corporations to prove that the publication “caused or is likely to cause serious financial loss.”
Nonprofit organisations are exempt from the “serious financial loss” requirement. “Is likely to cause” gives small businesses and more flexibility in meeting the “serious financial loss” threshold. A defamatory lawsuit will fail if you cannot clear the initial hurdle of serious harm.
There is the issue of “truth”. Reynolds v. Times Newspapers Ltd  set out the common law position concerning “truth” in that case it was truth in respect of qualified privilege and defamatory statements in the public interest.
However, the Reynolds defence is useful when considering truth in any defamation case. s(1) of the Act codifies the Reynolds defence by making it a defence if the person making the statement can show that the meaning conveyed by the statement was substantially true. In other words, if there is some truth in the meaning of the statement, then it may not clear the hurdle of a defamatory statement. The defendant only needs to show that the allegations are substantially true even if some of the allegations are false.
If there are several aspersions in the statement that damage the person’s reputation and the claimant can show that some of the disparaging claims are false, then the claimant still has to show serious harm for the disparaging claims in question.
There is no longer a common law defence of justification.
2. s3 of the Act addresses “honest opinion”. The defendant must be “honest”. It is no defence if there is evidence to show that an element that supports that opinion is doubtful or untrue. But the approach of the courts is to steer clear of any hint of an Orwellian ban on unpopular ideas or minority opinions. The Court will not be used as a tool for censorship by “vested interests” to silence criticism.
Operators of websites
s5 of the Act deals with responsibility for publication by website operators and sets down a “takedown defence” which codified Godfrey v Demon Internet 1999.
s5(2) gives the website operator a defence if the operator can show it did not post the statement on the website.
However, s5(3) if someone is a facilitator then he has no defence against a defamation claim if:
– the claimant can show that is was not possible to i/d the person who posted the statement,
– the claimant can show that the website operator had notice of the defamatory material,
– although notice was provided the facilitator failed to respond to the take-down notice in accordance with any provision contained in the Defamation (Operators of Websites) Regulations 2013 (the Regulations).
In other words, the S5(2) defence is not available to you once you have been served with a takedown notice of the defamatory material if such take-down notice and your response or lack thereof complies with the Regulations.
Single publication rule
s8 of the Act removes the so-called multiple publication rule.
Publication occurs only on the first occasion that the material is made available to the public.
When the defendant distributes the publication in multiple jurisdictions, it must be downloaded first by several readers in the UK.
Every time defamatory material is published a new cause of action with its limitation period of one year from the date of the cause of action arises provided the new publication is in a manner materially different from that of the first publication.
This provision does not affect the court’s discretionary exclusion of time limit for defamatory lawsuits. however many years have passed since the original publication. Publication would now occur only on the first occasion that the material is made available to the public.
s9 of the Act deals with actions against a person not domiciled in the UK or an EU Member State. The Uk must be the most appropriate place in which to bring an action in respect of the statement. Lawsuits arising from statements published in jurisdictions outside of the UK cannot be in the UK, except where the publication elsewhere damages the claimant’s in a way that causes serious harm to the claimant’s UK reputation.
This article deals with Internet defamation.
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