Defamation and anonymous blogging

Has anyone else ever put comments up in online forums, or in response to newspaper stories or blog posts? If you’re reading this post, I suspect that you might have been tempted to do so. You know the drill then. You are required to enter your name in a box headed “Name”, and then you are required to enter an e-mail address. Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort. Perhaps you have used a psuedonym, feeling safe in the knowledge that no one will know who you are. Given a recent case in the UK, perhaps you need to mind what you say.

In Sheffield Wednesday Football Club Inc v Hargreaves [2007] EWHC 2375 (QB), a football club, Sheffield Wednesday, and members of its board of directors sued the owner and operator of a fan website, www.owlstalk.co.uk, for defamation. The plaintiffs sought to require the website to disclose the e-mail addresses of contributors to a fan chat forum whose contributions were said to be defamatory.

At the outset, taking off my lawyer’s wig and adopting a practical point of view, it seems to me that if one’s fans are already offside, then suing those who are critical of your management isn’t going to increase your popularity with the fan base… Just a thought.

In any case, the comments were made by some 11 anonymous contributors, all of whom were fans of Sheffield Wednesday. All of the comments were scathing about the way in which the plaintiff chairmen/directors and others had managed the club.

Richard Parkes QC said at the outset at [9]:

…in a case where the proposed order will result in the identification of website users who expected their identities to be kept hidden, the court must be careful not to make an order which unjustifiably invades the right of an individual to respect for his private life, especially when that individual is in the nature of things not before the court.

Ultimately, his Honour decided that the defendant should be required to divulge the details of only those contributors whose comments were of the most serious nature (at [17] – [18]):

It seems to me that some of the postings…border on the trivial, and I do not think that it would be right to make an order for the disclosure of the identities of users who have posted messages which are barely defamatory or little more than abusive or likely to be understood as jokes. That, it seems to me, would be disproportionate and unjustifiably intrusive. …

The postings which I regard as more serious are those which may reasonably be understood to allege greed, selfishness, untrustworthiness and dishonest behaviour on the part of the Claimants. In the case of those postings, the Claimants’ entitlement to take action to protect their right to reputation outweighs, in my judgment, the right of the authors to maintain their anonymity and their right to express themselves freely, and I take into account in this context the restrictions on the use of defamatory language which the rules of the Defendant’s bulletin board impose, restrictions which in the case of these postings appear to have been breached. I take into account also that the Defendant does not appear to have had any policy of confidentiality for the benefit of his users.

Having read the exerpts of the comments in the judgment itself, the comments in fact seemed pretty tame compared to some things I’ve read in the blogosphere. I could imagine the comments being made by disgruntled fans in the pub after the match, and indeed, I think this is very much the way in which the fans themselves saw it; except that they had put the comments in writing on a public forum, which gives the comments a very different status.

People often treat e-mail and online forum comments as if they are “verbal” rather than “written”. But what could just be a disgruntled whinge may come across as something altogether more serious when put in writing. I fell into this trap once myself with e-mail, and vowed never again to communicate problems via e-mail, as they lack “tone”, and may come over so much more harshly as a result. 

Furthermore, it’s easy to be nasty if you are just typing a comment and don’t have to look someone in the eye when you make it. I once dealt with a client who was pleasant if you saw him in person, but typed vicious and unreasonable e-mails asking you to crush the other side and give no mercy, even if the dispute was partly of his own making. My tactic was always to ring him back about the e-mail and get him to soften the instructions thereby. I’ve never found a “take-no-prisoners” approach to be effective. Softly, softly, catchee monkey…and go in for the killer punch if necessary at the end.

It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure psuedonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a psuedonym on this very blog, I always write as though I was writing under my own name. I’m sure it’s easy enough to work out my real identity if anyone really wanted to do so.

The lesson for us all is to be very careful with what we say. Would we be embarrassed to own up to it? Is what we are saying truthful? It seems that it was important in this case that (a) there was no confidentiality policy in place to protect the details of contributors and (b) there was a policy that abusive/defamatory comments should not be made. At the very least, those who run internet forums and the like will have to revise their confidentiality policies if they wish to protect the details of contributors.

Any comments, of course, will be treated STRICTLY CONFIDENTIALLY (just for the record, in case any judges out there are reading this blog).

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12 Comments

Filed under blogging, blogs, courts, defamation, e-mail, England, freedom of information, freedom of speech, Internet, law, media, privacy, soccer, technology, tort law

12 responses to “Defamation and anonymous blogging

  1. You are spot on when you say

    It’s even easier to be vicious if you are anonymous, because if you want to make up a sufficiently obscure pseudonym, even your own mother might not realise you made the comment, so you don’t have to take responsibility for it. Although I write under a pseudonym on this very blog, I always write as though I was writing under my own name..

    Sadly too many anonymous bloggers use a pseudonym to be complete idiots.

  2. Getting soccer fans “offside”?!

  3. It figures I’d decide to drop by after you’ve posted this.

    The anonymity thingie is the reason I refuse to debate people on-line. They say ridiculous things, and then hide.

    But, as you so rightly point out, you are only anonymous as long as you are allowed to be.

    Here in the states, Michelle Malkin (A rightwing nutbag if there ever was one) posted the names and addresses of some of her “political enemies” on her blog. On top of being harassed they also received death threats.

    Malkin got off with nary a consequence, and it made many people quite nervous to say the least.

    That is why I never comment on Wingnut blogs.

  4. Cherry Ripe, sorry I couldn’t resist the pun. Ha ha. I guess I am my father’s daughter (and thus a lover of silly puns).

    Iain, as we have discussed in the past, my own anonymity arises because (a) I don’t want to embarrass any former workplaces at which I have worked and (b) I don’t have an ongoing position at my present workplace, so I’m a bit nervous. And of course, as a lawyer I’m neurotic about the risks inherent in everything I do. Legal training is a great thing for making one a pessimist, or at least very cautious.

    I treat everything I say as if I were writing it under my own name, and I do not attack people. But I’ve noticed others use anonymity as a shield to be cruel or vicious. It brings anonymous bloggers as a species into disrepute. Which is a pity, because some of us are reputable and decent, just a little shy.

    Fairlane, I remember reading about that furore. All extremely unpleasant. Initially, I enjoyed the cut and thrust of the political blogs, whatever side of politics they were from, but I haven’t commented on blogs which feature those kinds of aggressive debates for a long time myself. I don’t mind as long as people treat me with the respect I treat them, but if people are going to abuse me or get personal, I’m not interested.

  5. Aren’t the UK defamation laws far more oppressive in the UK? Off of the top of my head (and it has been a while), isn’t it the case that while truth generally (in Australia and abroad) is an absolute defense, it isn’t necessarily so in the US?

    I’ve thought about writing under a pen name, but to be frank I’ve never bothered. Like you I’d write in the same fashion as if I had revealed my name, which seems to me to be common amongst bloggers.

    Aside from embarrassment for people you know or have known or worked with, there is the added issue of cyber-safety. Identity theft, financial fraud, cyberstalking/stalking proper and so on are always concerns (although I thought the Fed Govt.’s recent campaign was pretty cynical).

    It’s a common rule of cyber-safety not to reveal your personal details (which I’ve long since broken). I don’t have a problem with people who do use a pen name though, just as long as the write in a fair minded manner as if they were writing under their own name.

  6. Fairlane, is that the same “Michelle Malkin” who not only supports racial profiling, but also advocates detention of persons based on race?

    It still surprises me that some prominent polemicists engage in stunts that involve abuse and threats. I thought that the e-thuggery that Tim Blair has massaged in Jeremy Sear’s direction was bad*, but this stunt of Malkin’s sounds worse, at least the way you make it sound to me.

    Perhaps I should write an “Internet Squadristi” post on the matter. Maybe she’d sue 😉

    * Legal Eagle – I hereby personally take full legal responsibility for this statement. 😉

  7. Yes Bruce, one and the same. She’s also a minority, and her parents were immigrants.

    The wingnuts always find one who’s willing to sell out.

  8. If you use FireFox as a browser and look through available plugins, you’ll find those that can (a) anonymously proxy your connection so it’s very hard to get an IP address of where you come from, (b) create a “temporary” but real email that only lasts for a couple of hours (useful when you need to give a valid email to get access to a download, but don’t want your letterbox stuffed with promotional material later). While I’m a strong privacy advocate, I think people should behave exactly the same, regardless of whether or not they are wearing a “mask”.

    I’d also note “real-world” impacts of harrassment in SecondLife, not just blogs. (I’m not a 2ndLifer, I just read NewScientist).

    Bruce: Truth is not a defence, I think, in Qld. In some Oz jurisdictions, the only issue is whether the subject of the comment was “harmed” – regardless of whether the “harmful” statement was true and the “harm” deserved – e.g. restaurant business falls off because someone points out they had flies in their soup. Doubtless LE can correct me if I’m wrong.

  9. Wow, some interesting stuff there, LE.

    I post under a pseudonym for two reasons:

    a) I write about my work a lot and want to protect the privacy of my students and collegeaues. It’s my policy NOT to write things that I wouldn’t be comfortable saying to their faces. The same goes for commenting on others’ blogs. If I was having the conversation with them in person, is it something I’d say? If not, it gets deleted.

    b) you’d be surprised how often students google their teachers. They look up your address, personal details and so on. As it is, I’ve had several requests to become ‘facebook friends’ (namely from year 11 boys), all of which I’ve denied as quite frankly, the less the kids know about me, the better.

  10. It is not surprising that the right to protect reputation was held to outweigh the right of freedom of expression, given that that is exactly what the law of defamation does (and in a not unreasonable way, according to the recent HL decision in Jameel).

    As for a promise of confidentiality to anonymous posters, any web forum which does that these days would be exposing itself to serious risks: even if we can never identify the anonymous ones, we can always identify those responsible for the forum and go after them. There is no “its the internet” defence, although removing oneself and one’s site to, say, Chad or the Sudan might give one certain legal protections. Short of that, allowing anonymous commenting really puts quite a high responsibility on the forum host to make sure they do not stay up for long if they carry any risk of being defamatory (or otherwise unlawful).

    As for truth being a defence, even when it is, the onus is on the speaker to prove it. Not always an easy task.

  11. Daniel A. Silvers

    Also, the DMCA makes most forums immune from liability for posts by users under most circumstances.

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