Mar­tin George

Fol­low­ing up on my ar­ti­cle from last week, and quite co­in­ci­den­tal­ly, our firm had cause to send to a me­dia house a warn­ing let­ter in re­la­tion to Web site con­tent al­leged­ly con­tained on their on­line blogs. With the bur­geon­ing free­dom of ex­pres­sions and the in­creas­ing av­enues by which same can be ven­ti­lat­ed or vent­ed, it is im­per­a­tive to ex­am­ine and un­der­stand the re­spon­si­bil­i­ty which comes with such a wide­spread, per­va­sive and pow­er­ful fo­ra.

Nali­ni Di­al of the COP, of course, cre­at­ed her own firestorm with her on­line posts. What­ev­er the pros or cons of that par­tic­u­lar sit­u­a­tion and what it por­tends for the COP in the long run, it is clear that an in­creas­ing area of in­ter­est will be the rights and re­spon­si­bil­i­ties which cir­cum­scribe, lim­it or cur­tail this said on­line free­dom of ex­pres­sion on the world wide web, and the im­pli­ca­tions for dam­age, hurt, dan­ger and defama­tion to per­sons in­her­ent in al­low­ing such un­tram­meled, un­lim­it­ed and un­cen­sored free­dom of ex­pres­sion.

In a re­cent case, a Texas Court of Ap­peals found in favour of de­fen­dants who had post­ed a crit­i­cal re­view of the plain­tiff's prod­uct on­line. In that case of David Rafes, Inc vs Huml, 2009 Tex App (1st Dist Oct 29, 2009) it was al­leged that the de­fen­dants pub­lished defam­a­to­ry state­ments about Rafes' busi­ness, claim­ing that the Rafes' tur­bocharg­er was a poor­ly man­u­fac­tured Chi­nese prod­uct that would "in­evitably fail in a short amount of time."

In or­der to bring a cause of ac­tion for defama­tion, a claimant must es­tab­lish that the de­fen­dant:

• Pub­lished or caused to be pub­lished, a state­ment about the claimant

• That was defam­a­to­ry

• While act­ing with ei­ther ac­tu­al in­tent or reck­less dis­re­gard, mal­ice or neg­li­gence re­gard­ing the truth of the state­ment with re­sult­ing dam­age to the claimant.

As in­di­cat­ed last week, the claimant can even be a com­pa­ny or in­cor­po­rat­ed body. Pan Trin­ba­go has suc­cess­ful­ly sued for defama­tion, and com­pa­nies such as Ude­cott have al­so in the past filed ac­tions to pro­tect them­selves against defama­tion of the com­pa­ny it­self.

Gen­er­al­ly, a de­fen­dant can de­feat a defama­tion claim by es­tab­lish­ing that the pub­lished state­ment on which the ac­tion for li­bel is based is a true state­ment. Ad­di­tion­al­ly, the law and prac­tice in some ju­ris­dic­tions is ex­pand­ing where­by a de­fen­dant can de­feat a defama­tion claim by es­tab­lish­ing that the state­ment at is­sue is sub­stan­tial­ly true where it is es­tab­lished that "the 'gist' of the pub­li­ca­tion is sub­stan­tial­ly true."

The sub­stan­tial truth stan­dard has al­so been re­ferred to as the "gist" test be­cause, un­der this ap­proach, on­ly the "gist" of the state­ment in ques­tion must be true in or­der for the state­ment to be pro­tect­ed. It does not re­quire proof that the al­leged defam­a­to­ry state­ment is lit­er­al­ly true in every de­tail; sub­stan­tial truth is suf­fi­cient.

This doc­trine pro­tects cer­tain false state­ments so long as any in­ac­cu­ra­cies do not ma­te­ri­al­ly al­ter the dis­sem­i­na­tion of an oth­er­wise truth­ful speech. The Texas Court de­cid­ed in favour of the de­fen­dants, find­ing that the tri­al court had heard suf­fi­cient ev­i­dence to con­clude that the plain­tiff's tur­bocharg­er was, as it con­clud­ed, a "bad prod­uct" and that the ev­i­dence sub­stan­ti­at­ed the 'gist' of the state­ments con­tained in the In­ter­net ar­ti­cle.

Un­der cer­tain cir­cum­stances, peo­ple who de­fame oth­ers anony­mous­ly on the In­ter­net may lose their anonymi­ty. A re­cent ex­am­ple is a case de­cid­ed on Ju­ly 12, 2010, in re: Anony­mous On­line Speak­ers, Anony­mous On­line Speak­ers, vs Unit­ed States Dis­trict Court for the Dis­trict of Neva­da Reno, 611 F 3d 653, 10 Cal Dai­ly Op Serv 8774, 2010 Dai­ly Jour­nal D A R 10,795 (Ninth Cir 2010).

That mat­ter in­volved Quix­tar, a com­pa­ny which brought suit al­leg­ing that a com­peti­tor or­ches­trat­ed an In­ter­net smear cam­paign via anony­mous post­ings and videos dis­parag­ing it and its busi­ness prac­tices. The court or­dered the com­peti­tor's on­line con­tent man­ag­er to dis­close iden­ti­ty of three of five on­line blog­gers who al­leged­ly made the defam­a­to­ry com­ments.

The court ac­knowl­edged that First Amend­ment pro­tec­tions in the US in­volv­ing anony­mous speech ap­ply to the In­ter­net as well, and that the abil­i­ty to post com­ments anony­mous­ly on the In­ter­net pro­motes the ro­bust ex­change of ideas and al­lows in­di­vid­u­als to ex­press them­selves freely with­out "fear of eco­nom­ic or of­fi­cial re­tal­i­a­tion... (or) con­cern about so­cial os­tracism." McIn­tyre, 514 US at 341-42, 115 S Ct 1511" Id at 656-7.

The court al­so ac­knowl­edged that just be­cause this was com­mer­cial speech, not po­lit­i­cal speech, that did not mean it lacked First Amend­ment pro­tec­tion. How­ev­er, this char­ac­ter­i­sa­tion alone did not de­ter­mine the lev­el of First Amend­ment pro­tec­tions for the anony­mous com­mer­cial speech cen­tral to this case.

The Supreme Court un­der­scored that "an au­thor's de­ci­sion to re­main anony­mous, like oth­er de­ci­sions con­cern­ing omis­sions or ad­di­tions to the con­tent of a pub­li­ca­tion, is an as­pect of the free­dom of speech pro­tect­ed by the First Amend­ment." McIn­tyre, 514 US at 342, 115 SCt 1511" Id at 657.

How­ev­er, in this case of Quix­tar, the court con­sid­ered the im­por­tant val­ue of anony­mous speech bal­anced against a par­ty's need for rel­e­vant dis­cov­ery in civ­il ac­tion for defama­tion. It al­so recog­nised the "great po­ten­tial for ir­re­spon­si­ble, ma­li­cious, and harm­ful com­mu­ni­ca­tion" on the In­ter­net, and that giv­en the speed and pow­er of In­ter­net tech­nol­o­gy, it makes it dif­fi­cult for the truth to 'catch up' to the lie and thus the al­leged de­famers were quite prop­er­ly and quite right­ly ex­posed and made to face the con­se­quences of their ac­tions.