Workbook on Digital Private Papers > Legal issues > Defamation

Defamation

Introduction to defamation

Defamation is a false accusation of an offence or a malicious misrepresentation of someone's words or actions. The defamation laws exist to protect a person or an organisation's reputation from harm. In England and Wales, a defamatory statement comes in two forms: a permanent defamatory statement called libel (written or recorded in some other way) and a non-permanent defamatory statement called slander (unrecorded speech or gestures). Scottish law regards both forms of defamation as one. Personal digital archives may include opinions which another person could consider as libellous and by making such records available in a digital archive, whether online, or in a designated reading area, the digital archivist could be considered as 'publishing' that archive. This is significant because both the author and the publisher of a defamatory statement can be sued.

The UK Defamation Act 1996

The UK Defamation Act 1996, exists to protect the reputation and good standing of an individual. In order to pursue a successful defamation suit the claimant must:

Defences against defamation

Justification
This is the defence most commonly used. The defendant must prove that the statement is not defamatory, but true.

Fair Comment
The defence of fair comment allows for the expression of a genuinely held opinion on a subject of public interest. The defendant must prove that the statement was intended as an expression of opinion, not as a statement of fact and that the opinion was made in relation to facts, which the defendant must be able to prove. Further, the defendant's comments must not imply malice.

Privilege
Privilege recognises that in some circumstances it is in the interests of society that people be able to communicate without fear of being sued. One enactment of privilege is the Bill of Rights of 1689, which allows MPs complete freedom of speech when debating in the House of Commons, though action may be taken in the Commons if a Member is found in contempt:

'...That the Freedome of Speech and Debates or Proceedings in Parliament ought not to be impeached or questioned in any Court or Place out of Parliament'
Bill of Rights, 1689

Protection for innocent dissemination

The 1996 Defamation Act was intended to clarify the position of innocent dissemination, in the event of a defamation suit, by persons who are not authors, editors or commercial publishers of a statement, if they took reasonable care in relation to its publication. These subordinate distributors could be printers, distributors, on-line service providers and live broadcasters. A defence of reasonable care would need to prove that the publisher did not know or did not have reason to believe that what they did caused or contributed to the publication of a defamatory statement. Such provisions are contained in Section 1(1) and 3) of the Act:

1(1) In defamation proceedings a person has a defence if he shows that:

(a) he was not the author, editor or publisher of the statement complained of,
(b) he took reasonable care in relation to its publication, and
(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved ... -

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form.

Case Law: Laurence Godfrey v. Demon Internet Ltd

The defence of 'innocent dissemination' was first tested in the case of Laurence Godfrey v Demon Internet Ltd by the Queen's Bench Division of the High Court in 1999. Dr Laurence Godfrey, a Physics lecturer, asked the Internet Service Provider (ISP) Demon Internet Ltd to remove a forged posting to a USA internet newsgroup which was made to appear as if it were sent by Dr Godfrey. Despite receiving a fax from Dr Godfrey outlining that the posting was a forgery and requesting that it be removed as it was defamatory to him, Demon ignored his request and the posting remained accessible until it expired around 10 days later. Demon pleaded a defence of 'innocent dissemination' but this was denied by the High Court which ruled that Demon had not acted responsibly as technically the ISP provider was in a position to remove the offensive posting but had chosen not to do so.

Who would be sued?

As yet there is no case law involving an archive in a defamation lawsuit. If things go wrong and a defamation case is brought, is the archivist or the institution responsible? Could both be sued? The answer is likely to be that it would be the publisher of the libel who would be at risk. So it is necessary to decide who the publisher is and where the materials are hosted. Those who repeat or republish the libel can also be guilty of libel.

In some cases an offer to remove the offending material and the issuing of an apology will be sufficient. It would be wise for institutions to have a 'notice and take down policy' whereby offending material could be immediately withdrawn from public access upon notice of a potentially libellous statement. This would be in accordance with European and UK law, which has tended to treat the Internet Service Provider (a role to which an archivist is analogous) as not liable as long as they act promptly to remove libellous material when notified. The critical point being that once a defendant has been notified of the libellous content, they can no longer claim 'reasonable care' in relation to its publication. If an offer to make amends occurs after proceedings have been initiated, it must conform to the specifications articulated in s. 2 of the 1996 Defamation Act which state that:

An offer to make amends: