Saturday, 4 June 2011

Reputations On-the-line | Defamation in Cyberspace

3 interesting articles caught my attention this week, all having to do with protecting reputations in cyberspace.

The first was about a famous British footballer who went to the English courts for a Super Injunction but yet got his story splashed across the world by tweets emanating from the U.S. This is an example of how helpless reputations become when something negative is written about it online. The Super Injunction prohibited the  publication of the story regarding the footballer and his alleged affair which did not seem to be effective accoss the Atlantic from where the order was made.

Second, there was the story of a Malaysian blogger who was ordered to publish apologies by tweeting 100 tweet posts from his twitter account for defaming a Malaysian publishing company. The tweet read  "I've DEFAMED xxxxxx Magazine. My tweets on their HR Policies are untrue. I retract those words & hereby apologize", complete with a counter as to how far he's got through the hundred apologies. The tweets were ordered as part of a punishment for the blogger's views. The article was not clear whether there were other forms of compensation ordered for the defamation, but this is definitely a highly unusual and innovative way of compensating those who are a victim of defamatory remarks published online.

Lastly, a piece on the Atlantic about a Brooklyn Congressman dealing with "a very 21st century scandal involving a West Coast college student, dick pics, allegations of hacking, and (what else?) Twitter". The article touted the beleaguered Congressman's decision not to take legal action for what could be a damaging episode to his political career. Referring to the Streisand Effect where efforts taken to hide information merely leads to the opposite result, in this case, extending the "story's press cycle".

These separate events teaches us a few things -

One - super injunctions are not invincible. While the law on defamation in England & Wales has developed the remedy of the 'super' injunction which purports to extend its jurisdiction worldwide, it is demonstrably toothless in the online context vis-a-vis another jurisdiction. The footballer's name was eventually published in the U.K by the press citing reports published elsewhere revealing his name. Although denied of a scoop, the British press was eventually able to publish the footballer's name despite the injunction.

Secondly, litigants and courts are developing a level of sophistication when dealing with defamation online. Gone are the days that the payment of damages and a published apology will suffice. When the Malaysian blogger had to publish 100 tweets, its' effect was definitely better than a single page apology published in the traditional press. The litigant showed an appreciation for the impact of social media and harnessed this to its advantage. Another point to note, it is easier to enforce remedies for defamatory statements if these are made locally. The blogger and the company subject to the defamatory statements were both Malaysian. It would have taken a while longer to enforce its rights if the claimant was located in a different jurisdiction.

Lastly, Court action may not be the answer to your online woes. The Congressman was well aware that going  to court to clear his name may, in fact, perpetuate the story online, much to chagrin of Mr. Giggs.

This is not intended to be a discussion on the law of defamation as that would take a whole book by itself.  But briefly, Brunei does have defamation law which can be found at Chapter 192 of the Laws of Brunei. It is based on the English law of defamation. You won't find a definition of what is "defamation" in there, but the principle applied by the Courts in deciding whether a statement is defamatory are that it must be in a form of words which tends to do one of the following:

  • lower the claimant in the estimation of normal right thinking people;
  • expose the claimant to hatred, contempt or ridicule; or
  • caused the claimant to be shunned or avoided.  
The statement must be made to someone else other than the claimant.  

Section 3 of the Defamation Act stipulates that the broadcasting of words by means of telecommunication shall be treated as publication in a permanent form for the purpose of the law of libel and slander. This means that a tweet or a FB post may qualify as a defamatory statement. Further, Brunei's law follows the English position on re-publication. A publisher of a defamatory statement made by another, will render the publisher liable for damages as well. This is very different from the U.S position where the first publication rules applies.

What this entails for an ISP is that any defamatory statement carried on its networks or service of which it is made aware of, may render it liable to a claimant for the publication of the defamatory statement. Although Section 10 of the Electronic Transactions Act (Cap. 196) provides some immunity for third-party material, this immunity may be lost if the ISP comes under an obligation to remove, block or deny access to such material.  

While cyberspace, well, at least the one around Brunei is not immune to the effects of the laws of defamation, it is worth remembering that such laws exist and it is worth your while to always be responsible when posting comments online. I have heard of complaints from victims of defamatory and other hurtful comments made online, and don't let the lack of legal action put you on a false assumption that nothing can be done about it.

The law does provide remedies and it is only a question of time that a case is litigated here. Or, it could be just a case of avoiding the Streisand effect or a lack of understanding about rights and responsibilities online. But let's not take unnecessary risks, okay and be a responsible citizen online.  

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