The internet is an incredible tool, used to communicate with each other, do business and act as consumers but it brings with it, certain problems e.g. comments which breach the Defamation Act. Consequently Internet Service Providers are obliged to take measures to prevent potentially statements being published that are in breach Defamation Act.
Under the Defamation Act, defamation is defined as intentional communication of false statements that adversely affect an individual’s reputation. Written defamation is referred to as ‘Libel’ and oral defamation is referred to as ‘Slander’.
The first question to ask would be are Internet Service Providers liable for defamatory statements made over the internet?
A defence exists under Section 1 of the Defamation Act which is protects bodies who would otherwise be liable for the publication of such material.
In order for this defence to be used, the following things will need to be shown:
- That the individual was not the author, editor or publishes of the statement
- That the individual took reasonable care in relation to its publication
- That the individual did not know and had no reason to believe that what he did caused or contributed to the publication of a defamatory statement
Section 1(2) of the Defamation Act provides defines an author/publisher/editor as:
- Author – the originator of the statement
- Editor – a person having editorial control or equivalent responsibility for the content of the statement or the decision to publish it
- Publisher – a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business
The purpose of this defence is to safeguard Internet Service Providers and other bodies are who may become victims of mass litigation under the Defamation Act.
However it is possible for an Internet Service Provider to be deemed a publisher in relation to a defamatory statement for which the above defence would not be applicable.
This will occur when an Internet Service Provider is alerted to the existence of a defamatory statement and they have neglected to take reasonable steps in removing that material.
So in order to rely on the Section 1 defence under the Defamation Act, Internet Service Providers must remove defamatory postings as soon as they have been made aware of their existence.
The costs implications of Defamation claims
Under the Defamation Act, defamation is defined as intentional communication of false statements that adversely affect an individual’s reputation. Written defamation is referred to as ‘Libel’ and oral defamation is referred to as ‘Slander’
There are around 220 defamation cases issued in the High Court at the Royal Courts of Justice each year. However it is difficult to ascertain either the total number of proceedings issued or the number of defamation claims settled before court proceedings are issued. This is no doubt due to the high level of costs involved in auctioning defamation claims.
Claims under the Defamation Act are often spoiled by spiraling costs and disproportionate legal fees that skews justice as defendants often decide to settle unwarranted claims rather than face huge libel costs.
There is often no limit on how much may be spent on claims under the Defamation Act which is why the UK government has attempted to curb costs by proposing the following measures:
- early notice if ‘After the Event’ (ATE) insurance has been taken out
- a 42 day ‘cooling off period’ where, if the defendant admits liability and it leads to a settlement, the ATE premiums won’t be payable by the defendant
- a mandatory cost budgeting pilot for defamation proceedings, aimed at ensuring that costs are proportionate and within the agreed budget, with close judicial supervision.
With the proposed measures, more defamation claims under the Defamation Act are likely to be contested but given the litigious nature of society today, is this really a measure that should be pushed forward?
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