Although it is difficult to achieve a successful outcome in an online defamation issue, it can be achieved by carefully establishing who is making the comment and where it is located. Other important considerations are how damaging the comments are and whether the threats might lead the defamer to make more comments. Litigation and threats of litigation are not always the best way forward, but they can be a useful tool. The Facebook case illustrates one such case where litigation was used to stop defamation on a social networking site.
The case of Facebook: a modern version of defamation
Many web users have the false belief that they can say whatever they want on the Internet and not be held responsible. The courts are determining otherwise. In the most recent English case, Applause Store Productions Ltd v Raphael [2008] EWHC 1781 (QB) (QBD), a man was held responsible for comments made on Facebook. Although the limits of libel law were barely stretched in this case, it is interesting to see how the court responded.
The case involved Mathew Firsht, the owner of Applause Productions, a well-known company that provides audiences for television shows. He did not have a Facebook account. In June 2007, a fake Facebook profile was placed on an account under the name of Mr. Firsht. It included extensive personal information about him, including his sexual orientation, political views, religious beliefs, and a photo, purportedly of Mr. Firsht, but actually a copy of the brother’s Facebook page profile photo. twin of him The profile also included a link to a Facebook group called ‘Has Mathew Firsht Lied To You?’ In this case there was no dispute over whether the material was defamatory but over who had posted the profile and the group.
The identity of the defendant, Mr. Raphael who had been a friend of Mr. Firsht and also knew him professionally, was revealed after Firsht’s lawyers sent a takedown notice to Facebook and obtained an order from Norwich Pharmacal against Facebook. The order required Facebook to disclose not only log data, but also details of the IP addresses and email addresses that created the profile.
In fact, the profile had been created by someone at the IP address of Mr. Raphael. After the profile was created, all relevant activity that occurred on the fake account continued to come from Mr. Raphael’s IP address. The same IP address was also used during this time to log into two other Facebook accounts: Mr. Raphael’s account and Mr. Raphael’s girlfriend’s account. The fake account had only been logged in from two different computers at the IP address that included Mr. Raphael’s computer and his girlfriend’s laptop, which he admitted he used frequently. The data on the IP address and the login data were not refuted by Mr. Raphael.
The case becomes even stranger. Mr. Raphael’s defense was that he did not create the profile and that the night the profile was created, he and his girlfriend had met a group of strangers in a bar who then returned home with them and spent the night. . He said that one of them must have created the profile from his computer. He did not provide an explanation for how someone else had been logging into the account from his IP address on subsequent occasions the account was accessed, which would have been after the stranger who created the fake profile left the house. the. Instead, he chose to defend himself on the basis of alibi evidence that he had not been home on the other occasions he had accessed the Facebook profile, so he had to have been someone else.
The judge did not believe his story at all (rightly so) and decided that in fact Mr. Raphael had been the one to put up the fake profile as well as the smear group. Although the profile was not visible for a considerable period of time, 16 to 17 days, the judge ruled that due to the popularity and nature of Facebook, which targeted the material to people who knew Mr. Firsht, the materials were particularly harmful. The judge also ruled that the allegations of dishonesty were serious enough to harm Mr Firsht’s business, so he awarded the award of £15,000 to Mr Firsht personally, £5,000 to his business and an additional £2,000 for violation of your privacy. In this case, Mr. Raphael learned to his sorrow that comments made online can be expensive and that lawyers can often get around the anonymity problem with IP addresses that identify computers and not users.
Responsibility of Internet Service Providers
The other point to bear in mind when discussing defamation on the internet is that in some jurisdictions, including England, internet service providers may be liable for the content of the sites they host. They may be liable even if they were merely passively hosting the site, unless they remove the objectionable material when notified to do so. The famous case on this point in England is Godfrey v. Evil. In that case, an unknown person pretending to be Godfrey posted a comment on Demon’s server. The statement was defamatory. The real Mr. Godfrey asked for it to be taken away, telling Demon that it was fraudulent. When Demon failed to remove the post, Godfrey sued for defamation and won. This case established the importance of ISPs treating complaints seriously and investigating and removing any content that could be considered defamatory.
From this case, the e-commerce directive came into effect, which also has ramifications for when a host may be liable for defamation (or other acts). ISPs are in a difficult position. For one thing, if they remove any content posted by their customers, they could violate their customers’ contractual rights (unless their contracts expressly absolve them of liability in certain circumstances). On the other hand, if you don’t remove content you could become personally liable for it to third parties.
Under the E-Commerce Directive, most ISPs will be viewed by courts as a mere conduit and therefore not liable for content, as long as they do not initiate the transmission, select the recipient of the transmission, and do not select or modify information. in transmission. However, ISPs will still be liable if they are notified of infringing material and then refuse to remove it, and some believe their responsibilities should be further expanded.
The position in the US
In the United States, ISPs are not responsible for defamatory information, but are often joined as co-defendants in lawsuits with John Doe. There is a purely practical reason for doing this. ISPs are becoming more cautious about disclosing information about their users as it could be an invasion of privacy.
Joining the ISPs as defendants, once the lawsuit is filed, the attorneys can make discovery demands on the ISP to obtain all the relevant data that could help them track down the unidentified user who posted the comment. Once the user is identified, the ISP generally withdraws from the lawsuit and the user remains the sole defendant.
These laws not only have ramifications for ISPs, but also for any company that has a forum or allows user-generated content on their website. Many companies are not aware that they themselves may be held liable for defamation due to the actions of employees or other third parties on these websites. In-house attorneys are becoming more aware of defamation and privacy laws in order to take appropriate steps to protect their employers.
To do
If you discover that you are the subject of a defamatory comment online, there are several things you can do. Clearly balance the seriousness of the comment with the costs associated with removing it. The last resort option would involve going to court to obtain disclosure orders. Unless the comments are particularly serious or pervasive, other avenues should be explored first.
If it’s a hate site that uses a domain name similar to your company name, there may be a chance to try to get the domain name back through a UDRP or other dispute resolution policy. However, this can be risky as it has not yet been decided whether these types of sites constitute fair use under the rules. The other problem with this method is that it can further inflame the situation. Also, your efforts could be wasted if the site simply reappears on another non-infringing domain name.
Another option is to address the comment in the press or on your own website. In Israel recently, an anonymous internet user started a hate campaign against Israel’s most well-known dairy manufacturer. The defamatory comments were posted on a variety of websites and were also sent via email. The company responded to the situation by posting comments on the website and also sending its own emails through employees defending its business. This approach has been successful as the content is no longer published and things have become clearer for anyone doing future web searches.
It should always be kept in mind that the attacks are usually short-lived. Surprisingly, the best option can sometimes be to deal with the situation by ignoring it and possibly using SEO strategies to keep the site or comment low in search results. The comment or website will often disappear as it takes a lot of energy to keep the site prominent enough.