by Allan Norman
I once observed that a fellow social worker had posted a defamatory comment online here. Community Care - understandably cautious, when a lawyer makes such an observation to the world at large - removed the defamatory content, although you can still read my observations here.
In a fascinating recent development, Smith v ADVFN Plc & Ors [2008] EWHC 1797 (QB) (25 July 2008), the libel courts have had to consider the question whether comments made in online forums can actually constitute libel. The short answer is: possibly not, if you are careless enough in what you say!
Yes, it appears there is a distinct advantage to mouthing off without reflection. The judge said that the contributions to a bulletin board bore the characteristics of a casual conversation, uninhibited, and ill-thought out. Avatars (a "rather pompous and inaccurate word" for a user name, acording to an earlier judge in the same matter), by providing anonymity, help to disinhibit people; the whole process is much like a conversation in a bar; and the participants should be prepared to expect "give and take".
In defamation law, this is legally very significant. If you defame someone in this way, it is apparently akin to slander - verbal defamation - rather than libel - written defamation. And the threshold for proof of damage is higher for slander - or more mundanely, it is harder to recover damages for a verbal slur (or its online equivalent) than a written one.
In making such a ruling, the judge has provided some protection to the ill-advised and opinionated blogger who puts their foot in their mouth. But it is something of a backhanded protection. If I assert - as I do - that my blogs are not "uninhibited, casual and ill thought-out", then presumably I am not afforded such protection - and could be guilty of libel.
Allan Norman is Principal Social Worker & Solicitor at Celtic Knot (www.celticknot.org.uk), an independent law firm and social work practice.
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It was a quite extraordinary ruling and quite unhelpful. It sounds as though the judge had confused "bulletin boards" (remember those?)with chat rooms?
Thankfully my assertion is "mere vulgar abuse" and thus I am immune to prosecution. Phew
Personally I think the judgement was a very good one whatever technical arguments there may be over whether the comments were slander or libel or how ill thought out or not they may have been.
As the judge suggested, the comments arose because of the way the claimant was behaving to others on the bulletin board and his reputation would be judged on this behaviour which was for all to see rather than what others were saying about it. A very important point.
Also, remember if the judge had allowed this case to proceed, potentially 50 individuals involved in what was little more than a silly BB spat could have been dragged through the courts by a claimant who incidentally is exempt from court fees. That would not have gone down too well with the tax payer.
If one speaks in haste they can expect to suffer the consequences go bad. It is important to put one's brain in gear before opening their mouth.