I’m looking at the legal aspects of blogging, especially in regard to defamation and libel.
I noticed over on a particular ‘watchers’ site, a tendency to allow commenters to say things to and about other commenters which seemed to me to be way over the top, often without moderation.
I have even, through another blog I run on an occasional basis, advocated caution to one or two blogs, including the one in question, which carry clearly defamatory posts and/or comments that they could possibly be liable for if they are not careful.
On the page in question, a commenter had made some serious allegations about a ministry which were being challenged by another commenter.
The commenter challenging included a list of the legal implications of what was being said.It made for interesting reading, because, of course, we consider Australian law and how it could affect what we say on blogs, but most blogs are not limited to Australia even though they may be produced there. Blogs are generally global and each land they appear in has laws which govern what, for them, constitutes freedom of speech, including definitions of defamation, and the relevant chargeable offences.
The following is, according the the commenter in question, the legal aspect for Singapore, minus the various quotes from the site by a commenter who was being challenged:
In Singapore, Defamation is a criminal offence under section 499 of the Penal Code. This means that the police can take action and arrest the perpetrator of defamation if there is sufficient evidence of such transgression.Defamatory words published over the internet would constitute libel, if the 3 elements described below are present.
(1) Firstly, the statement in question must be defamatory.
It is defamatory if it lowers the victim in the estimation of right-thinking members of society, causes the victim to be shunned or avoided, or exposes the victim to hatred, contempt or ridicule.
The post would be defamatory because it harms your reputation, causing you to be exposed to contempt. In addition, a statement is defamatory if the inferential meaning alone defames.A statement may be defamatory in two ways:
(i) via the natural and ordinary meaning of the words used or as may be reasonably inferred from the words; and
(ii) by way of true or legal innuendo. True innuendo arises from words which appear innocuous, but may be understood to be disparaging of the plaintiff.
(2) Secondly, the statement in question must refer to the victim, referring to the victim by name would constitute reference. This means that if a blog post accuses a wrongdoing, and a reasonable person can relate the imputation of dishonesty to you, a member of that organisation, reference would be found. Careless words or inadequate research, is no defence to the tort of defamation.
(3) Thirdly, the statement in question must be published, or communicated to a third party.The defamatory statement had been communicated to third parties who would reasonably understand the statement to be defamatory of the plaintiff.A tort is a breach of civil duty owed to a fellow person. Under the tort of defamation, written words can constitute libel, while spoken words can constitute slander, both of which can give the victim a right to commence a civil lawsuit against the wrongdoer.If the statement is not defamatory but is still very damaging, you will still have grounds to sue the perpetrator, under the tort of malicious falsehood.
SECTION 6 MALICIOUS FALSEHOOD
The Cause of Action21.6.1
A person is liable for malicious falsehood if he or she maliciously makes false representations in respect of another with a view to injure that person’s goodwill or economic reputation.Aggravated damages may be awarded in appropriate cases. Aggravated damages, which are compensatory in nature, may be awarded in respect of the additional injury caused by the defendant’s conduct or bad motives. Punishment for defamation shall constitute an imprisonment of two (2) years.*
You can follow this case on the thread of the post here (although it may be removed shortly for obvious reasons).
So this leads me to Australian law. Whilst there is a certain amount of liberty on blogs, and one hopes we are a liberty to not only express our views, but also be critical of others, including occasional insults and sledging (an Australian custom, whereby one person makes derogatory remarks about another in order to disarm them or intimidate them without resorting to physical violence, to put them off their game), there are also laws that prohibit defamation, libel or slander, which can carry penalties.
This is a business perspective from Aspect Legal:
Could innocent blog comments amount to defamation?
Businesses using social media need to closely monitor what they, and their employees, are saying about others to ensure you aren’t in the firing line of our defamation laws.
In this article, we provide an outline of what constitutes defamation in Australia, and what you need to be careful of.
Under Australian state laws, you (or your company) may be in the firing line of a defamation action if you have written material that has harmed the reputation of a person, a small business (of less than 10 people), or a not for profit organisation.
It is not just the original authors who are at risk of a defamation action, the net stretches as wide as anyone else who publishes or re-publishes the material. So just because “someone else said it” doesn’t mean you won’t be caught up in the cross fire if you have published or re-published it.To make out an action of defamation, the “defamed” must show that:
1. Material has been published, or communicated to someone other than the “defamed” person. Clearly anything published on the internet ticks this box.
2. The “defamed” person was identified in that published material. Identification may not necessarily be by name, it can be enough that you have included characteristics that enable a person to be identified. And take note, where a group of people have been defamed, each member may be a possible plaintiff!
3. The published material was defamatory (defined as material that exposes a person toridicule, lowers their reputation in the eyes of the community, causes people to avoid them or injures their professional reputation). Sounds quite subjective and hard to predict doesn’t it?!
Some examples of things that could be found to be defamatory, include saying that someone is:
- Corrupt, dishonest or disloyal
- Suspected of committing, or alleged to have committed an illegal act
- Suffering from a contagious disease, or insanityThere are a few possible defences if you are in the firing line of a defamation allegation. If you can prove that the statement is substantially true, then you have found yourself a get out of jail free card. Remember though, you have to have enough proof to be able to establish this… sometimes not as easy as it sounds.
There are a few possible defences if you are in the firing line of a defamation allegation. If you can prove that the statement is substantially true, then you have found yourself a get out of jail free card. Remember though, you have to have enough proof to be able to establish this… sometimes not as easy as it sounds.
Other defences include absolute privilege (for example in parliament – probably not relevant to most of us!), qualified privilege (for things like publication of public documents), honest opinion where the published materials are a comment (rather than a statement of fact) that is a matter of public interest, triviality and consent – among others.
Of course, often the mere threat that someone may have taken our comments as defamatory will be enough to have us deleting the material immediately – but in today’s cut and paste, tweet, and re-tweet kind of interaction with the internet, finding all traces of our comments and deleting them from the depths of google is easier said than done.
Recent comment on Craig Thompson’s defamation action against the media suggests that defamation litigation can have the effect of silencing the media even in instances where it may be in the best public interests for it not to be silenced. A sobering thought for those of us who may not have the deep pockets of a large media company to defend ourselves in the courts.
So while we may feel justified in what we say, if we are putting our comments anywhere on the internet, we should perhaps be taking a step back, and ensuring we aren’t putting ourselves in the firing line.*
You may want to check out further information on this subject from Skepticlawyer, who has written an excellent piece on this very subject on his blog.
Awareness of liabilities
It is increasingly clear that Government bodies are being lobbied to increase penalties for comments made in journalism, media and even on blog comment streams, where people could be falsely accused, defamed, or their reputation could be being harmed by a constant harassment through concentrated articles.
I have been going through recent threads to check many of the comments for their content. Some comments, on posts I have added and their threads, I have removed. I was alerted to this by comments made by at least one contributor on recent articles which were, without doubt, defamatory in nature. I haven’t seen a whole lot of it on this blog, although it comes close sometimes, but I warned a previous Moderator that some of his posts were too close to the mark even then.
Things are set, quite rightly, in my view, to become even tighter legally, to defend people and their reputations from ill-informed or malicious people, and there are, I am sure, lawyers prepping up on litigation law to see where they can make a real killing in this area now that the first Twitter cases have got underway.I don’t know what you think, but, in my opinion, none of us should be allowed to defame someone even in jest on a public airway.
Judge scripture, test doctrine, have opinions about methodology and means, but do not slander the man.The amount of defamatory content I have seen on certain ‘watchers’ blogs is alarming. God does utilise the civil authorities to bring down disciplined policing of society. We need to learn to be circumspect about what content is allowed and what is to be cut away.
*Disclaimer: The material contained on this website is provided for general information purposes only and does not constitute legal advice. You should not depend upon any information appearing on this website without seeking legal advice. We do not guarantee that the contents of this website will be accurate, complete or up-to-date.