the olden days...
Before the internet, the only people with the real power to communicate en masse to people were the newspapers, publishing houses and broadcasters. These organisations understood the risk of defamation and would employ people to read for defamation before something was published. That’s because under defamation law publishers are liable for defamation as much as authors. So, even taking a reader’s letter and reproducing it could potentially cause a newspaper to be liable as a publisher. Sometimes the publisher would take the risk of publishing in the interests of higher readership, other times it would not. But, it was always a calculated decision.
The internet changed all of that
With the advent of the internet, every person now has the ability to publish to a potentially wide audience and online forums increase the potential to reach that audience. The problem is that publication is now instantaneous and it is often impractical to check the content for defamation before it is posted on the web.
This exposes the regular person to claims of defamation and also this puts the forum owner in somewhat of a predicament since the forum owner could be categorised as the publisher of such material. But how does the forum owner know the content is defamatory? For a start, the content could be posted before they even become aware of it and secondly, they have no time or resources to employ defamation readers to give them an answer.
You see, what may appear defamatory may not be defamatory because there are several defences to defamation. Perhaps the most common defence is that of “truth”, namely that whatever was posted was true. There is a similar defence of honest opinion which can be relied upon where the opinion expressed was generally held (in other words there must be some facts to substantiate the opinion). But, for the forum operator, how can he or she decide whether one of these defences applies? It is extremely difficult without proper investigation or expert advice. Therefore, should the forum owner exercise a higher degree of editorial control similar to a newspaper editor or magazine publisher?
Editorial control or not?
A few recent cases on defamation (one in the UK and the other in NZ) indicate that if a forum owner exercises a high degree of editorial control that could make the forum owner more likely to be liable as a publisher of defamatory content. Whereas, if the forum owner can establish that he or she had very little control over what gets published on their website then the ability to escape liability may increase.
However, that’s not to say that having a wilful disregard for what is published on your website will help either. Certainly, if a forum owner is made aware of the defamatory content there would appear to be an expectation on the forum owner to go about removing it. If the forum owner hasn’t removed it within a reasonable time then liability may attach.
Some practical steps for forum owners
So what practical steps can a forum owner take to limit any exposure? Here are some suggestions:
· Explain on your website that you have no editorial control over the published content but will investigate complaints thoroughly;
· Implement a procedure whereby third parties can complain about defamatory content and if necessary you will take down the offending comment after you’ve carried out an investigation;
· Require your users to indemnify you for any loss that you suffer as a result of comments posted by them. Then if you do get sued, potentially you can make a claim against the author to recover any loss which you suffer.