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What Can and What Can Not Be Posted Online? US vs. UK Libel Law at Out-Law.com : The Special Problem of Anonymous Libel

By Andis Kaulins

In Unvarnished law: review site shows why UK is playing digital economy catch-up | Pinsent Masons LLP
Struan Robertson at Out-Law.com (Pinsent Masons) looks at the differences between the United Kingdom and the United States in their handling of identifiable as well as anonymous online libel and also discusses the enforceability of foreign libel judgments.

Online libel is a key Internet issue in our digital era because it goes to the heart of what can - and what can not, or should not - be lawfully published, or be lawfully publishable online, and who is, or should be, legally responsible in the case of a legal cause of action for libel.

In our view, online libel is greatly misunderstood by the legislatures and the courts, who confuse the valuable right of the freedom of speech with the unrelated and undesirable tacit permission of the dissemination of wilfully false and/or libelous online materials. The latter problem is exemplified by the famous case involving false and libelous material published to the Wikipedia about one of Robert Kennedy's former assistants. As written by Bobbie Johnson of The Guardian in Wikipedia bans anonymous contributors to prevent libel:

"The online encyclopedia Wikipedia has been forced to change the way it operates after claims it had become a breeding ground for "false and malicious" information.  [T]he operators of the site - which allows anyone to write and edit articles - are banning anonymous users from creating new entries.... [emphasis added]

The furore began last week when a journalist, John Seigenthaler, a former assistant to the former US attorney general Robert Kennedy, attacked Wikipedia in a scathing editorial in the newspaper USA Today. He was angered by an entry insinuating he had been involved in political killings. "For a brief time, he was thought to have been directly involved in the Kennedy assassinations of both John and his brother, Bobby," said the unedited biography. "Nothing was ever proven."

Seigenthaler contacted Mr Wales to get it removed. "At the age of 78, I thought I was beyond surprise or hurt at anything negative said about me. I was wrong," he wrote. "For four months Wikipedia depicted me as a suspected assassin."

In spite of the above and similar blatant examples of false and malicious online libel, legislators and courts have failed to establish clearly applicable and quickly appliable laws and guidelines to put a stop to online libel at its source. In fact, there are strong barriers faced by an injured party to defend his or her good name, especially in the case of anonymous libel, where it is initially extremely difficult -- without a great deal of expense -- to determine the identity of the anonymously libelling perpetrator(s). Criminals are thus given advantage over honest citizens.

As we have previously written about libel by the news media -- and even moreso applicable to anonymous libelers:

" In our view of the law, NO MEDIA has the right to falsely impugn the integrity of others ? and if they do not check their work conscientiously and still publish such things falsely, then they should be liable. No one is denying news media the right to engage in CRITICAL reporting ? but ... If your research does not support what you write to be a fact ? then do not impugn another?s integrity. That seems to be a clear and laudable legal standard. It surely cuts a lot of the irrelevant ad hominem out of news reporting.

Someone who has his integrity falsely impugned in print has a difficult time reestablishing his or her reputation as the damage is normally done and everyone is on to different things and new events....

The prospect of bringing a libel suit against news media in order to obtain a printed retraction has almost no chilling effect on the publication of false and maligning opinions. The media is powerful and individuals less so....

They are trying to profit at another?s expense and to gain an advantage for their causes against the causes advanced by others.

Hence ... we say YES to ?democracy? and to ?freedom of speech and the press?.

But we say NO to any press right to impugn the integrity of others through sloppy reporting. That is not what we regard to be a foundation of democracy. Reputations are easily destroyed by the press ? but this is not a constitutional right."

Full post as published by LawPundit on April 17, 2010 (boomark / email).