Communication is key

As technology allows speech to blossom across borders and different media, Charles Glasser talks about the five key communication concepts that all solicitors should know

Technology changes the way we live, and in turn, the way we live changes law.


In the early days of motoring, drivers of the era's wheezing, clanking and slow-moving cars were required by law to be preceded by a man on foot walking ahead, waving a red lantern and warning those on horseback that a motorist was approaching. As technology advanced (with cars becoming quieter and outnumbering horses), that law was eventually struck. The law evolved to keep up with the way technology changed modern life.


Living in the era of instant global communications is no different. Laws will eventually conform to new realities, and will be reshaped to facilitate the changing needs of societies. But unlike motorcars, speech moves at the speed of light, and crosses borders instantaneously. It could well be argued that the greatest change in communications is not the blinding speed of transmission - indeed, wire services were able to transmit First World War battle reports back to London almost instantaneously - but we now have a blossoming of speech because of the degree by which everyone has the ability to publish and distribute. That speech now circumnavigates unfiltered in all its grating, gratifying, annoying, inspiring, selling, soothing and offending glory. With this 'democratisation', solicitors who exclusively service Fleet Street clients are no longer the only ones presented with novel questions about speech and its impact. Here are five concepts that every non-media specialist solicitor ought to be aware of:

Everyone is Gutenberg. For better or worse, a computer and modem are all that is needed to make your client's voice heard. Web pages have begun to surpass printed newspapers as the public's primary source of news. But recognising that 'everyone is Gutenberg' means understanding that speech - and the attendant liabilities - is not limited to 'news' or commentary. Corporate clients should consider that their employees' use of e-mail often carries the domain name of the employer, thus, in some jurisdictions a libel claimant may try to prove that the company endorsed an employee's libellous e-mail, chat room or blog posting. Establishing policies, employing Web filters, and training employees in appropriate use of company computers may vitiate this liability.

Similarly, companies are 'virtual Gutenbergs' because company Web sites issue press releases, make sales claims, post advertisements, compare competitors' products and proffer transactions around the world. Thoughtful solicitors will consider analysis of the various unfair competition and trade disparagement laws of the different jurisdictions in which their client solicits business. Germany, for example, has exceedingly stringent requirements about using competitors' names and labels in comparative advertising, while in the US the constitutional right to free speech has expressly been extended to commercial transactions.

Defamation is culturally reflective. Defamatory meaning is a central element of any libel claim. Generally, a statement must expose the claimant to some variant of 'shame, ridicule, scorn, contempt or lowered estimation in the minds of right-thinking individuals'. But defamatory meaning is reflective of the values of the culture in which the claimant brings his cause of action. For example, being named as 'homosexual' might be of no moment in Stockholm, but in Sicily it might be an affront to one's honour. A statement that seems innocuous in the UK or Spain might be met with shock and dismay in Japan or China (in many Asian countries, the dead may still bring a libel claim). Similarly, to publish in the US that a competitor has lost sales is not, absent more, defamatory, because there is no shame in suffering the vicissitudes of ordinary business. By the same token, in Brazil such a statement might be read as injuring the dignity of the subject. Always consider the specific sensitivities of the culture in which potential claimants reside, and teach your client to avoid unintended offence.

Truth is not always an absolute defence. This is perhaps the greatest difference between UK law and the laws of many EU jurisdictions. In Switzerland, for example, privacy interests are commingled with reputational interests under the law. Thus, a defendant may be forced to defend not only the truth of the cited statement, but must also justify the intrusion into facts that although true, are unflattering and delve into facts about the claimant himself, rather than simply what the claimant is alleged to have done. Such justification is achieved by convincing a court that a greater social utility is served by such intrusion. In short, the defendant must be able to prove that the public needed to know the information at issue. Examples of such social utility include public health and safety, or warning of imminent economic risk. Facts characterised by courts as 'mere gossip' are likely to fail the public interest requirement.

Clarity and precision are your client's best friends. As most UK barristers will attest, courts are generous about reading an implied libel into a story that might damage one's reputation. This is no less so in most nations. For example, in describing civil litigation between parties, the writer might say that 'X was charged' with wrongful conduct, when in fact the writer meant to say that someone accused X of wrongdoing. But by substituting 'charged' for 'accused' some courts may allow an inference that X was subjected to some form of criminal sanction such as arrest.

Similarly, incompleteness is in some nations a form of error, and the failure to tell the entire story may subject a speaker to liability. In the UK, one can publish a dry and historical factual recitation of the charges laid against an individual in the criminal court, including the acquittal or conviction. By sticking to the papers filed and to the allegations made in open court, writers will enjoy an absolute immunity. However, other nations place a burden of completeness on writers and publishers. In France, even if absolutely accurate, reports of past criminal convictions may violate that nation's press law, because the law presumes that the subject has been rehabilitated over time. The length of time when a conviction is no longer considered 'fair game' is dependent on the type of conviction. Brazil and other nations have also placed similar restrictions on the ability to report or comment on 'old' criminal histories, without regard to their truth or falsity.

Don't guess, research. There are as many odd wrinkles in procedural and substantive law as there are different nations, and lawyers are strongly advised that nothing can be taken for granted when evaluating a potential claim from across the border. This is even more the case when the issue is counter-intuitive to the principles solicitors learn in the UK or the US. In France, for example, while truth is a defence to libel, the defendant may not rely on proof that came into his possession after the claim is filed. In Spain, potential claimants have a statutory right of reply independent of whether a claim is actually filed. Publishers ignore such demands at their own peril, because failure to publish such statements is adjudicated by a strict liability standard.

Solicitors can best serve their clients by examining the scope of their communications, reviewing the likely jurisdictions in which claims may be brought, and developing standards and practices that best prevent claims.


Charles Glasser is in-house media counsel at Bloomberg in New York and the editor of The International Libel and Privacy Handbook: A Global Reference for Journalists, Publishers, Webmasters, and Lawyers, published by Bloomberg Press earlier this year