Defamation suits aren’t what they used to be. Gone are the days when a defamatory allegation was communicated predominantly in the print media and, though sensational at the time, would generally be relegated to chip-wrapping the next day. As media specialist Amber Melville-Brown at David Price Solicitors & Advocates observes, modern technology means a defamatory story can no longer be forgotten by the time the chips go cold.

‘Rolling news enables a story to be published over and over to millions of people worldwide, while internet archives allow defamatory allegations to remain accessible indefinitely,’ she points out. The internet, in particular, she says, has brought about a fundamental change, with the ‘publisher’ of defamatory material online no longer being only the old but known foe of the media, but an entirely different force: the blogger.

‘Almost anyone with a couple of pennies and brain cells to rub together can put up a website, and even those lacking in either are easily able to contribute to a debate online, and often do. Rants and rages, obscene allegations and threats, lies and misinformation flood the internet.’

While an affected party may choose to disregard them as not meriting a response, she says, they can have an insidious effect, creating a momentum of their own until – repeated and republished frequently enough – they are believed to be true.

Trying to stop a concerted campaign of criticism on the internet, she adds, can be like ‘trying to plug the holes in a colander’.

‘While the experienced legal departments of the press might sensibly consider a complaint about a defamatory publication on its website and take appropriate action, that will not necessarily be true of the one-man website or the teenage blogger doing as much damage from his bedroom in Norwich or Norway.’

Best & Soames partner Martin Soames says it has become much more common to bring claims in connection with internet publication.

‘This pattern began with Gutnick v Dow Jones in Australia, which said publishers were responsible for publication anywhere from Afghanistan to Zimbabwe; it was modified in Dow Jones v Jameel [2005] which held that an action based on negligible publication here would be dismissed as an abuse of process,’ he says.

The courts, he adds, have been good and proportionate in dealing with online publication. ‘In Sheffield Wednesday v Hargreaves [2007] the court rightly distinguished between trivial online postings, in relation to which it refused to order disclosure of identity, and other more serious allegations.’

Taylor Wessing’s head of media, Niri Shan, says the core principles of defamation law are unchanged by the rise of new technology. Problems can arise, however, which illustrate the limitations of adapting the existing law as highlighted in one of his recent cases, where defamatory material about the claimant was posted on the site of a message board host.

‘The defendant is seeking to rely on the internet defence in the Defamation Act 1996, so it must prove it took reasonable care in the publication of the material. The defendant maintains it took reasonable care by removing the offending material soon after becoming aware of it. The claimant argues that the individual who posted the defamatory statement was a recurring offender and that, to meet the standard of reasonable care, the defendant should have edited everything written by that individual before posting.’

Harbottle & Lewis solicitor Jo Sanders says that, although defamation law applies in the same way to online media as to printed matter, some cases suggest it might warrant different treatment.

‘Most recently, in Smith v ADVFN Plc & Ors [2008], Mr Justice Eady drew comparisons between postings on bulletin boards and a casual conversation, in that both can be informal, sometimes ill-considered and, crucially, perhaps not always taken as the literal truth by the participants.’

These, she says, are likely to be relevant factors in establishing the defamatory meaning of a blog, but subject to that, libel should still offer the same degree of protection for a claimant.

Social networking sites, she says, have given rise to particular problems – especially where users place an over-reliance on privacy settings.

‘There have been several cases where people have put photos of friends on such sites, intending only a close circle to see them, but they have instead been accessed by newspapers or magazines. This can also give rise to copyright and privacy complaints. In these circumstances, allegations published more widely often merge true elements with rumour and invention and it may be that we will see more libel claims brought alongside other actions, such as privacy, false attribution, breach of copyright and data protection.’

Olswang associate Ashley Hurst agrees that libel is increasingly being used with other causes of action, including misuse of private information, harassment and unlawful data processing: ‘It’s interesting to see the tactics coming into play when deciding which causes of action to use.’

The recent dispute involving over Formula One boss Max Mosley and the News of the World was an interesting example of how a privacy action was initially preferred to a libel action, he says.

‘One of the key elements of privacy cases is that it doesn’t matter whether the allegations are true or not so long as they are private, whereas truth is a defence to a defamation claim. It’s also very difficult to get a pre-publication libel injunction whereas pre-publication privacy injunctions are more readily granted.

‘Mosley sued for breach of privacy first and won, and only then sued for libel. By going down the privacy route first he got the proceedings to trial more quickly and had the case heard by a judge rather than a judge and jury.’

Hurst says defamation cases have become more sophisticated and that the work of media lawyers has changed.

‘Defamation lawyers are now spending lots of time tracking down anonymous internet users. In contrast to libel actions against newspapers, in some cases claimants are now bringing proceedings simply to establish who is responsible for damaging their reputations and obtain injunctions against them, regardless of whether or not they will recover substantial damages.’

Online defamation poses particular problems because the individuals responsible are often anonymous. Even when they are eventually traced, many will not have deep pockets and so the chances of recovering costs and damages from them may be remote, he says.

'Often, however, individuals and companies need to bring proceedings to get an injunction and prevent republications of the libels or private information, even if they might not recover a large proportion of their costs.’

Other principles of defamation law have been adapted and applied to new technology to create a significantly different practical result, says Taylor Wessing’s Shan.

‘For example, the limitation period for bringing an action for defamation is 12 months from the date of publication, although a fresh cause of action arises each time the defamatory statement is republished. However, where a defamatory statement is published online and maintained in an archive, the republication is deemed to occur each time a reader accesses the article. Potentially, therefore, the limitation period for online publications is ongoing [see Loutchansky v Times Newspapers [2001]).’

He adds: ‘The law needs to be changed to introduce a single publication rule, which means the limitation period would start to run only from the first publication date.’

Hurst says the trouble with the online writing revolution is that most bloggers and social network users have a limited understanding of the laws of defamation and privacy, and so are laying themselves open to legal claims.

He also says many in-house lawyers will be brushing up on their defamation and privacy law, as more companies add elements of user-generated content to their websites, including customer reviews and discussion forums.

‘If a defamatory statement appears on one of these forums or online customer reviews, the company responsible for the website could be liable. Journalists and newspaper lawyers are used to dealing with the risks of libel, but an in-house lawyer for a retailer may be more familiar with commercial contracts than overseeing libel and privacy complaints arising from the company website.’

One of the key questions for in-house lawyers with this sort of online facility is whether or not to monitor.

Hurst says: ‘If companies don’t monitor their forums and just respond to complaints they may have a defence of innocent dissemination. Under section 1 of the Defamation Act, a website operator may have a defence if it did not publish the defamatory statement itself and did not know that its website was facilitating the publication of a defamatory statement from one of its users.

‘Retailers, for example, may want to monitor the discussions on their websites to maintain their integrity and ensure users are not causing any damage to the brand. But by monitoring, website operators are unlikely to be able to rely on the section 1 defence, as they would struggle to show they were not aware that it was facilitating publication.’

Each company, he says, should undertake its own risk assessment in deciding whether to monitor – and whether or not companies choose to monitor third-party content on their websites, they should have in place effective complaints and take-down procedures.

Shan says that, in the wake of the Human Rights Act, courts have acknowledged the importance of balancing defamation and freedom of expression.

The law regarding defamation published on the internet is potentially forgiving, particularly in relation to intermediaries such as media companies which host message boards.

Under the E-commerce Directive, media companies that host message boards will generally not be liable to pay damages for a post on one of their message boards provided they do not have actual knowledge of unlawful activity and provided they act quickly to remove the offending material when notified.

‘Similarly, media companies which host message boards have a defence under the Defamation Act,’ says Shan, ‘but to rely on it, a media company must show it took reasonable care in relation to the publication of the defamatory material and had no knowledge or reason to believe that it was defamatory. In practice, this means that a media company must remove allegedly defamatory postings as soon as they receive a complaint and without taking time to investigate [Laurence Godfrey v Demon Internet Limited [1999]]. This can create commercial and practical difficulties for media companies but these can be navigated, provided that media companies establish comprehensive procedures for dealing with defamation complaints and ensure that staff comply with them.’

These procedures should set the response times for handling complaints and removing material, and establish a consistent system for record keeping, he says.

‘Media companies must also ensure that their contracts with subscribers contain a clear policy on what constitutes unacceptable content and reserve the right to remove any offending material,’ he adds.

All this new technology has meant more work for private practice media lawyers, says Shan.

‘It has expanded the media in which defamatory statements can be published and created a greater number of potential claimants and defendants. It has also increased the complexity of the media landscape and created uncertainty as the law struggles to keep pace with technological developments. This can prompt companies and individuals to seek legal advice.’

But what of the future for defamation?

Soames says the offer of amends procedure has had a huge effect in weeding out unmeritorious cases, and he predicts there will continue to be many claims dealt with by negotiation, ‘but that will take place against a constant backdrop of cases which will be taken to court because they involve a genuine issue of principle’.

Lucy Trevelyan is a freelance journalist