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Web Page Owners – A New Defamation Risk

One of the joys of the web is the power given to web publishes by the various facilities they can provide on their web pages. Three particular facilities are well established. They are chat rooms, bulletin boards and notice boards. In a chat room individuals log on and can type messages which appear next to their name. Anybody else logs on at the same time can respond immediately allowing a chat to take place. A bulletin board is where people post notices and in effect reply to messages left by others, but without the same immediacy. These tend to generate rather longer and more thoughtful messages. Third, the notice board is typically a feature on the site where visitors can leave messages which are displayed for future visitors to read. These are typically simpler and usually contain simple congratulatory messages about the site.

A question which has not been faced to date relates to the responsibility of the web site owner for messages posted to the site, and the privacy or otherwise of the visitors to the site. A large UK company found that on one particular site, in this case a bulletin board, various messages had been posted which the company considered to be defamatory of its services.

Typically messages posted within web pages are posted under pseudonyms, and therefore at first glance, it would be difficult to identify the authors. The company therefore commenced action against the site owner to oblige the site owner to reveal to it the IP addresses of those who had posted to the bulletin board.

At the time of writing, the action is in its early stages, but there is little to indicate that the action should not succeed. The IP addresses are not in any sense privileged against discovery.

More interesting is what may happen subsequently. Those who log on using most free ISP’s, will be allocated an IP address which is unique to that log on. When I myself log onto Free UK and IP address will be generated and that IP address will be revealed when I visit a web page. If I log again however I will have a different address. My ISP however will no doubt have records which will make it possible to make a direct link between my dial up account and the IP addresses allocated at various times.

The big question is therefore whether this company will pursue its action by issuing threats against the various ISP’s obliging them to disclose the IP addresses involved. There would seem to be little purpose in beginning the one action unless they were prepared to pursue it obtain the correct account details.

Where will this all lead? Who knows? What are the lessons which need to be learnt?

1. The owners of web pages who provide this facility are potentially liable for the contents of what is posted. They can come to be aware that certain people may post defamatory remarks, but not have the software or capacity to deny them access to the pages. If they continue to publish the material knowing that a particular poster is in the habit of posting defamatory material they can become liable for that content themselves. Similarly, They should consider keeping an eye on such material and be ready to take steps to remove defamatory material.

They should consider what logs they wish to keep of messages.

Posters should recognise that the world of internet is not a private and anonymous world in which they can say what they wish without consequences.

The Data Protection Act 1998 promises much by way of privacy, but in practice rather less will be delivered where that privacy is used to shelter abuse.

March 2001. The above (first written in September 2000) could not have been a better prediction of what happened in the Totalise v Motley Fool UK case this month. Motley Fool, who hosted a web based chat room, were obliged to reveal the identity (so far as they knew it) of someone who had been posting to their chat room.

October 2008. ,p>Another recent case throws new light. Eady J, who is now the leading defamation judge short of the CA, discussed the possibility that postings on a bulletin board or web-forum can be counted rather more as slander than as libel. It was not central to the decision, but it is a pint which may be worth considering in future. One element not addressed by him was the differences between systems. On many an internet forum, a posting will be kept virtually indefinitely. In a chat room or instant messenger service comments are expected to appear and isappear very quickly (aside of any consideration of them being retained by the service provider).

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 314 18 October 2013