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 Usually, there is a disclaimer beside the box, stating “will not be published” or “for verification purposes only” or something of the sort.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).

Damn them with faint praise

I couldn’t help being fascinated by the New York Times article about praising your kids. For some reason, I’ve been thinking about my schooling lately (not just because the question of sex ed at school got raised recently…) Perhaps it’s because I’m already nervous about sending my darling precious daughter to school.

One girl I know was told from a very early age that she was gifted. She refused to admit she ever got anything wrong. I remember her telling me when we were 14 years old: “Don’t ever admit that you don’t know anything!” She was shocked that I expressed ignorance about a topic. As I tell my students in my class, one should never ever feel guilty about asking a question if one does not understand. In fact, it’s the intelligent thing to do – to seek clarification, and to be open to learning new things! She still never admits it when she gets things wrong. And she is a very lonely, unhappy person to this day: she has alienated so many people.

I’ve written a post on feeling guilty, in which I expressed some doubts about labelling a child as “gifted”, no matter how gifted they may be. It seems that this doubt was justified.

I suppose my own views on this matter come from being labelled as “gifted”, not by my parents, but by my Australian high school. What did it do for my self esteem? S.F.A. What did it do for my results at school? I seem to recall that I actually did worse the semester after I was labelled as “gifted”. The best thing for me was to go to the UK, and to find out that I had to work bloody hard to keep my head above water and achieve results.

Doing “well” in an exam when I was doing O-Levels and A-Levels meant getting 60% – 70%. One did not always succeed. There were many answers one got wrong. And one only exceeded by working extremely hard. Before, I had been used to getting great results in tests without studying. In fact, I don’t think I’d ever had to study before. I was motivated by a sense of pride (How dare they think Australians are inferior?) and I pushed myself hard. For the first time in my life, I really worked, and it paid off.

I don’t like this modern tendency to try to “eliminate” failure. I seem to recall that when the VCE was introduced in this State, my mother received a bulletin saying “The concept of failure has been abolished.” Well, that’s stupid. Because real life isn’t like that. The fact is that some people are better at things than others. Full stop. It really gives me the irrits, particularly as this mindset doesn’t extend towards sport in the Australian schooling system. So one can be humiliated in all sorts of ways because of one’s sporting ineptitude, but woe betide anyone who says that maybe little Betty can spell “acrobat” and little Bill cannot. (You can guess from this that I was always one of the people who was left until last when teams were chosen at school. In primary school, only myself, the two overweight girls and the girl with the mental age of 7 were the only four people in our year not chosen for a netball team.) I’m never going to be a sporting genius. I’ve dealt with it. However, I now know that I can play and enjoy sport (with some effort and practice). Before I became a mother, I was in a soccer team and enjoyed it immensely. We even won some tournaments, to my immense pride and delight.

So, I won’t be telling my daughter that she’s “gifted” or “intelligent”, although I do think she’s a fabulous, clever and lovely little critter. I will tell her that I love her heaps, just for being her: in fact, I already do so repeatedly. But, after reading that article, I will feel justified in treating her like an ordinary human being, just as my parents treated my sister and I. The truth of the matter is, that to achieve results, one has to work hard and do “boring” stuff. It seems to be unpopular these days to emphasise this. Everything has to be “interesting” and palatable for easily-bored students. But once you get out into the real world, there’s lots of boring stuff. Just because you’re a lawyer doesn’t mean that you can escape this: in fact, it may mean you resign yourself to a life of boring stuff (discovery, due diligence etc). And one is constantly judged in the real world – who gets pay rises, who doesn’t etc. The best way of preparing children for the real world is to let them know that life isn’t always interesting, and native intelligence or talent alone does not get you anywhere without practice and hard work.

But when you do work hard and do well, it is immensely satisfying. And for me, at least, the world is an infinitely interesting place.

(Via Backwards City and Crikey)

World Cup

Well done Socceroos!