Super injunctions: to tweet or not to tweet? Home | News & events | Legal updates | Super-injunctions and online libel: Dangers for website users and hosts

Super-injunctions and online libel: Dangers for website users and hosts

24 May 2011

The identities of a number of celebrities said to have taken out 'super-injunctions' to prevent the media reporting their private lives have been revealed on Twitter and shared with thousands of users.

A super-injunction is a form of injunction under which the media cannot report the existence of said injunction, or its details - in effect, a 'gagging order'. 

The latest media storm around the alleged relationship between a married Premier League footballer and an ex-Big Brother contestant is one of several recent injunctions of this type.

It has come under scrutiny in the past few days as a result of social networking site Twitter. However, in a victory for irony, it is now being discussed at length by the media.

This, combined with the fact that an MP circumvented the injunction by way of parliamentary privilege and named the footballer alleged to have taken out the injunction, has led to wild speculation about what will happen next in this area of law. Surely reform has to be high on the agenda.

Intrinsically related to the current debates about super injunctions and their tenability in the ever-developing world of online communication, is what may happen if false allegations are made online, be that via social media sites or otherwise.  If such allegations are made, then various parties risk becoming embroiled in accusations of 'online libel', with potentially severe consequences.

With the Government's draft Defamation Bill currently the subject of public consultation, together with the fact that injunctions and privacy laws are maintaining a continuous presence in the UK media, England's controversial libel laws are yet again the source of debate.

However, whilst the law in this area may receive something of a makeover, it is doubtful whether the legal system can stay ahead of the game when it comes to the role of technology in defamation cases.

Anonymity: Bane of the defamed

There is no universally accepted definition of what makes a statement defamatory. Viewed broadly, though, a defamatory comment is one that is untrue and likely to damage the reputation of the subject in the eyes of 'right-thinking' people.

As communication technology advances, the law of defamation has been in danger of becoming obsolete. The law has emerged slowly over time to deal predominantly with traditional forms of publication and has struggled to adapt to new forms of social media, which are developing at something like breakneck speed.

The first known case of libel via Twitter was recently heard by the High Court in Wales, and is a good example of how the casual act of posting on a website can have serious and expensive consequences.

In the Twitter case, it was possible to identify the defendant with ease. More difficult, however, are situations in which defamatory material is posted online by anonymous website users. In situations where the main defendant may be 'person or persons unknown', a claimant will seek to pursue against the website host as well as the person making the defamatory statement.

It's the publication that's the problem

The so-called 'publication rule' in English law poses particular concerns for website hosts and moderators.

The rule states that every time a defamatory comment is viewed there is a new publication of that comment. Website hosts may be guilty of 'secondary publication' whereby they facilitate the publication of defamatory material by a third party.

The publication rule is particularly unfortunate for website hosts who, by the nature of their service, may end up publishing a defamatory comment thousands of times. The matter is further complicated by the ease with which foreign parties can sue one another in the English courts.

Generally speaking, as long as the defamatory statement has been published in England and the claimant has some sort of reputation in England, then they can sue there. Of course this rule was developed before the internet made it possible to publish anything, anywhere in the world at the push of a button.

The situation for ISPs

Internet Service Providers (ISPs) are generally protected from proceedings by the Electronic Commerce (EC Directive) Regulations 2002. Where ISPs act merely as conduits and remove defamatory information upon request they are unlikely to be liable for publication. Comparable rulings have been made concerning the role of search engines.

To moderate or not to moderate?

For those who run sites that allow the posting of user generated content, the decision of whether or not to moderate users' postings amounts to a dilemma.

The more responsibility that is accepted for moderating a site, the more likely it is that the site's owners or moderators will be held liable for defamatory comments, especially if they are not taken down swiftly once a complaint has been made.

However, allowing entirely unmoderated postings may have an equally detrimental effect on the site's reputation. Even if legal liability is avoided, hosting a site that allows users to post unsavoury or defamatory comments may not be a wise decision from a public relations perspective.

Is change afoot with the draft Defamation Bill?

The draft bill proposes the introduction of a 'single publication' rule, which would mean only one publication would be deemed to take place when material is posted online, rather than a new one every time the information is viewed.

There is also a proposal to make it more difficult for foreign parties to sue one another in the English courts (so-called 'libel tourism'), because of England's relatively claimant-friendly regime. 

What does this mean?

The Government's new bill may relieve some of the risks in respect of multiple publications and libel tourism for website hosts. However, the bill is still the subject of public consultation and so its contents will not be confirmed for some time.

These changes, if confirmed, may reduce the potential burden on website hosts and moderators to some extent but the courts are still likely to consider how widely a defamatory posting was viewed when calculating damages. If a moderator knew about a defamatory posting and left it available for viewing by large numbers of people they will struggle to avoid liability.

In relation to privacy injunctions in their myriad forms, there have been numerous recent suggestions that the law in its present form simply is inadequate and that reform is required. 

In particular, there has been a recent referral to the Joint Committee of Peers and Members of Parliament to investigate the use of privacy orders. It is probable that substantial changes may be made in the near future – watch this space!

What should I do?

© Shoosmiths. This page is for general information: it is not legal advice. Please read our full terms and conditions for details of the disclaimers and exclusions which apply.

Get in touch

Kate Smith

Solicitor
T: 03700 86 8418
I: +44 (0)1908 48 8418
E: kate.smith@shoosmiths.co.uk