How current defamation law has responded to online cases in the English country

Lu+Yangxiameng

【Abstract】It is admitted that Although the use of social networking services has been shown to produce a numerous benefits in peoples lives such as having access to more information， expressing themselves freely and facilitating supportive relationships， but some illegal actions like defamatory misbehavior caused by users on social networking sites may put individuals reputations in jeopardy. This article explores the current defamation act concerned with online defamation， the libel law reform， and key changes of new Defamation Act 2013 for online as well as its controversial areas.

【Key words】English country defamation law online microblog

Introduction

The development of Internet technologies， particularly social media， has profoundly altered the way people communicate and interact. Compared with the communication in the real world， people have a greater sense of freedom of expression when using online networks. It is admitted that Although the use of social networking services has been shown to produce a numerous benefits in peoples lives， but some illegal actions like defamatory misbehavior caused by users on social networking sites may put individuals reputations in jeopardy.

Defamation， one of online illegal actions， is that any libelous and slanderous statements which have the intention of damaging and harming individuals， businesses or entities reputations made by the publication. The defamation law is the mechanism to protect people whose reputations have been unjustly attacked. There is a libel law， also known as the Defamation Act 1996， applying to the Internet the same way it does to newspapers and TV stations.

This article explores the current defamation act concerned with online defamation， the libel law reform， and key changes of new Defamation Act 2013 for online as well as its controversial areas.

1. Development of social media

Tim Berners-Lee， the inventor of the world wide web， bears a dream that the web would become a social tool to allow people to be connected regardless of technical skills in mind （Berners， 2000）.The emergency and spread of social web technologies have made his dream a reality. Generally， social media technologies are referred to social networking sites， wikis， forums， blogs and microblogging sites （Osatuyi，2012）. These computer-mediated communication technologies are not only to connect people but to share user-generated content （Lewis， 2010）. Exchanging views and perspectives becomes easier and more convenient than ever before as technologies advance. The biggest attractiveness of the Internet is the anonymous speech which encourages people to express opinions freely and even views what they would have never expressed （Vamialis， 2013）. For example， twitter is a microblogging service that allows people to say anything that they are willing to within 140 characters and also is often regarded as a useful medium to learn about news providing quick updates. However， by encouraging free speech and disseminating user-generated content， the Internet platform makes it easier for individuals to have the risk of defamation because they say and do whatever they feel like without thinking of consequences. What is worse， most Internet users are unaware of their online illegal activities related to defamation. The definition of defamation and the current online defamation regulation will be presented next.

2. Current Defamation Act for online

There are two forms of defamation： libel and slander. “Libel is committed by publishing a defamatory statement in permanent form， while slander covers defamatory statements in transient forms， such as unrecorded speech”（Quinn，2013，p.222）. Technically， an action for defamation follows these three elements： 1）. “the statement complained of was defamatory—defamation； 2）.The statement referred to the claimant—identification； 3）.The statement was published—publication” （Quinn， 2013， p.222）. Defamation on media field usually involve libel， and online defamation is about libelous statements of the publication made on the Internet via communicative platforms. Whether an online activity should be accused of defamation depends on the behavior meeting the basic defamation criteria as mentioned above.

Due to the significant role ISPs（Internet Service Providers） play in the networking environment， the issue of ISPs will be introduced. According to Vakul Sharma （2006）， he defines an internet service provider as an interactive network service. The function of ISPs is to offer a platform for information exchange. In other words， Internet service providers act as an ‘information carrier or ‘information publisher. In most cases， ISPs take the risk of being sued for defamation because they allow the third party like individuals to post information freely on the Internet. Defamatory statements are transmitted by ISPs in various ways （Stuckey， 1996）. For example， a statement posted on a bulletin board system or a statement made on social websites provided by the ISPs.

3. Libel law reform

3.1 Background and reasons of reform

The law of defamation in the United Kingdom remaining to this day has gone through a 400-year common law evolution. From the Libel Act 1845， British libel laws were generally revised every half-century， there were the Law of Libel Amendment Act 1888， the Defamation Act 1952， and the defamation Act 1996 （Douglas &Linda，1997）. Currently， the latest Act exclusively concerned with defamation is the Defamation Act 2013 which comes into effect in January， 2014.

There are less than 20 years since last revision of defamation act 1996 has been taken effect， the reasons why defamation reform was launched again can be described as three aspects as follows：

（1） High costs of defamation： The extremely high costs of defamation cases have a chilling effect on free speech， since many potential defendants are unwilling to take risk of high costs to defence their reputations.

（2） Problem of libel tourism： Due to the greater possibility of success in Defamation cases in Britain， many foreign celebrities and businessmen take advantage of UK courts to sue for defamation even when there is no evidence of substantial publication in their countries. It is unfair that these foreign litigants turn to English courts in defense of their reputations in the situation that the serious harm is caused in their countries or their complaints have little even no connection to United Kingdom.

（3） The development of Internet in the information age： The internet is an uniquely and easily breeding ground for potentially libelous statements. One threat is the difficulty in identifying the publisher because of anonymous speech online and the complicated issue about liability of ISPs mentioned above. The long standing multiple publication rule on the internet is another problem unsolved. Claims could continue endlessly according to the multiple publication rule， since each ‘click on a website or online archive would amount to a new publication， regardless of the length of time from the original publication. Therefore， there is a need to distinguish original publishers from platform-providers.

3.2 The Defamation Act 2013 – key changes for online and their controversial areas

The Defamation Act comes into force on 1st January 2014. The new Act aims at giving more protection of freedom of speech and a number of changes dealing with the online defamation， for instance， the specific protection to website operators， have also been covered. New provisions related to online defamation are as follows：

Section 8 – the single publication rule

The most significant change is the publication rule found in Section 8， the new single publication rule replaces the past multiple publication rule. Under the new single publication rule， subsequent publication refers to “subsequently publishing the first statement or a statement which is substantially the same”. The Act applies only to a second publication by the initial publisher and not to a subsequent publication by a different publisher， namely “materially different” from the manner of the first publication. Additionally， the court may have considered the “level of prominence that a statement is given”and the extent of the subsequent publication when deciding “materially different” form. These changes offer greater convenience for examining potential online defamatory content.

The single publication rule provides benefits to all parties involved in an online defamation case. For plaintiffs， this rule helps them collecting all of defamatory statements in one case. It also applies to the damages that are caused in the longest limitation period. Additionally， this rule protects the interest of defendants from being involved in cases concerning the same publication.

Nevertheless， the single publication rule remains controversial. It is thought that the rule imposes the limitation on a second person who publishes the same statement for the first time when attempting to charge against defamatory material. For instance， a different operator of website cannot rely on this rule when potential claimant re-publishes the same former material on its website. At the same time， it makes it difficult for defendants to benefit from the short one-year limitation period.

Conclusion

In the information age， the way people communicate， obtain wealth of information and express their opinions via social websites is becoming more effective and diverse as technologies develop. These platforms， however， comes with problems， in particular attacks on individuals reputations. As suggested above， some key changes made in Defamation Act 2013 basically respond to dealing with the defamation caused on the Internet， and reflect the appeal in libel law reform—striking a balance between free speech and protection of reputation. However， with the ever-accelerated advancement of Internet and changes in political policy， culture， economy and technology， there are no absolute standards and invariable regulations specialized in dealing with online defamation cases. The issues on regulating behavior in online community and an appeal to enact the exclusive online defamation law remain to be discussed in the future.

References：

[1]Barlow，J.P.（1996）.A Declaration of the Independence of Cyberspace，February 8，1996.URL http：//homes.eff.org/barlow/Declaration-Final.html.

[2]Vick，D.W.，& Macpherson，L.（1996）.An Opportunity Lost：The United Kingdom's Failed Reform of Defamation Law.Federal Communications Law Journal.49（3），p.621-653.