eBay Libel Threat After Negative Feedback – When Online Libel Gets Personal
Chris Read, a 42-year-old from Kent, is facing legal action for libel after leaving negative feedback for an item he bought on auction site eBay. On October 3, Read used the feedback facility on eBay and wrote: "Item was scratched, chipped and not the model advertised on Mr Jones's eBay account." Mr Read subsequently received an e-mail from Mr Jones, a 26-year-old businessman from Suffolk who deals in second-hand electrical goods, saying that his comments were damaging his business, and threatening him with legal action unless he deleted them from the site (Source: Times online).
This case is interesting because it demonstrates how personal libel can get when it takes place on the Internet. If the seller wanted to get rid of the comment posted by Mr Read on eBay, the quickest way to achieve this would have been through a legal threat to eBay, not the buyer.
Companies like eBay would most commonly be advised by their lawyers to remove comments that bear a legal threat, to avoid becoming responsible for the content themselves.
As soon as a libel is reported to eBay, all the legal protections that it might have had by claiming it was only a third party to the dispute are no longer certain. Once it is notified, it is most likely responsible. This principle is often referred to by moderation professionals as "notice and takedown".
But when individuals, not companies, are involved, insult is personal, and they often don't have the benefit of a legal team and a cool assessment of the best way to achieve their objective (in this case the removal of a comment).
Lawyers are trained to separate emotion from fact and process. Private citizens aren't. This case is no doubt one of many to come. It would be interesting to see how the legal system adapts.
UPDATE:
As this blog is of a UK slant, it is always interesting to hear how things are across the pond, where libel laws are less onerous, and freedom of expression has more of a legal stance. I got the following comment from Michael Roberts, a reputation analyst at Rexxfield:
"I liked your article. The poster of the information is certainly liable for damages. However, I think you will find that eBay as a third party republisher of the libel enjoys federal immunity (at least in the USA) from civil litigation; furthermore they do not need to remove the offensive material, even if served with positive proof. (section 230(C) of the information communications decency act). (Although I am sure eBay would, they just don't have to)
Frankly I think it is an absurd loophole allowing web services to turn a blind eye to the plight of innocent victims of malicious speech. I recently published a few essays on this issue:
http://www.rexxfield.com/freedom_speech.html
Be sure to follow the links to the "google" blind eye responses to "take down" notices."
ThatDanny comment: As Michael rightly points out, the treatment of libel is different under US law to English (and Scottish) law. The protections that stringent libel laws provide are a double-edged sword, but in this case they make it simpler for individuals to achieve content removal in the UK than in the US.
Internet Forums More Like Slander than Libel, Says High Court Judge Eady
The ground is moving under Community libel legislation, one ruling at a time. The latest is a judgement from Justice Eady that Defamation on internet bulletin boards is more like slander than libel. Justice Eady said that bulletin board discussions are characterised by "give and take" and should be considered in that context.
In English law, a victim of libel can win damages even if he has not suffered financial loss as a result of the statement. A person who has been slandered must prove that actual damage has been suffered.
Read the full write-up by Out-Law here, but note that they have confused chat with bulletin boards, and that there is a statement at the end from Justice Eady that confuses things further, because it relates to blogs, not discussion boards or chat:
Out-Law: "Internet chat more likely slander than libel, says High Court".
Update: following my note to the editor of Out-Law, the title of this article has now changed to read "Bulletin board postings more likely slander than libel, says High Court". As the Editor quite rightly told me, they can't really do much about Justice Eady's reference to blogs.
IwantGreatCare.org – “rate your doctor” – will it go up in flames of libel?
IwantGreatCare.org was launched in the UK as a service allowing patients to rate their doctors online. Patients can rate doctors out of 100 on "trust", "listening" and recommended categories, and then leave comments about the doctors that they have rated.
Every time I consult to website owners about user generated content, one of the first points I assess risk on is libel. Some of the key questions are:
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a. How risky is the subject matter and how likely is it to land you in court for libel.
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b. What sort of mechanisms do you have to remove libel promptly (and how prompt is 'promptly').
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c. What sort of defences do you have in law if you are taken to court.
When the subject matter is people in a service profession, especially as personal as healthcare, libel is all but inevitable. Emotions tend to run high, and commentary becomes heated and very personal.
My experience also shows that people who are happy with a service are much less likely to comment on it online compared to those who are aggrieved or unhappy. Although some patients might go online to defend their GP, it is those with a grudge or misgiving who will carry the site, and it is often bad reviews that get the most focus.
To complicate things further, the kind of anonymity offered by IwantGreatCare.org produces a mistrust effect. When you see a good review, you wonder if it is real or produced by allies (or the practitioner themselves) to defend a reputation. When a bad review appears, it could well be a disgruntled colleague, not just a patient.
The risk is higher in the case of IwantGreatCare.org, because not only does it allow you to rate your doctor numerically, but it also lets you leave a comment. This is where patients and upset relatives will vent, like the example I found on the site for a certain doctor (whom I shall not name): "I went to see the doctor on behalf of my mother who is schizophrenic. He refused to listen to the issues i needed to discuss and was very very patronising and arrogant. I am not stupid - i have a doctorate in science and have published in many scientific journals - yet i was not listened to and the arrogance of Dr (Name) was unbelievable. He actually left me in tears as I left the surgery. I would recommend that anyone needing healthcare in (Place name) avoid him at all costs." If it were just numbers, perhaps it would have made it a little easier to defend in a libel case, but words to this effect cannot be taken back easily.
Then there is the question of prompt removal of libel, and how effective it is. I suspect that someone advised IwantGreatCare.org that they have a defence in law because they are not a publisher, as long as they remove content reported to them promptly. This may be the case when you run an online forum or community, but based on conversations with some of the most experienced libel lawyers in the country, I am not convinced that this argument would protect IwantGreatCare.org in court. The facts of the matter are:
- The site invites very specific content - the rating of doctors. It doesn't open a wide avenue of discussions, it isn't a general debate about doctors - it is inviting praise or criticism. A judge may well see this as implying responsibility for the content.
- a site run by "a small team", as IwantGreatCare.org describes itself, does not have the resource for immediate removal of reported content. Again, they may have been advised that "a reasonable time" for removal of content is not defined in law and that some legal experts suggest 72 hours, but in fact, and bearing in mind the point above about the kind of content invited, by the time a piece of content is removed, it may be too late to completely eradicate it from the Internet. The comment about Dr X that I quoted above has since been removed from the site, but still lives in Google's cache. If it is quoted by other sites and related to IwantGreatCare.org, then it will have left the control of the site, and the extent of the libel will have increased significantly. Even if removed, the originator would still be where it started, and I doubt if best efforts would defend the site from responsibility.
The IwantGreatCare.org is still in beta, and is already creating a storm of outrage within the medical profession. If it actually makes it to a full launch and gains some traction, I would not be surprised if it had to defend a libel case within its first 18 months.
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Libel as an expense line – Robert Murat and the Cost of Doing Business
Robert Murat, the first named suspect in the disappearance of Madeleine McCann, has settled his libel action against a number of British newspapers over claims he was involved in her disappearance. And the sum of the settlement? It is estimated at somewhere in the region of £500,000.
To you and me this might be a large sum of money, but in context it raises an important question: Is this sort of sum a deterrent against libellous press?
If you look at the detail carefully, you will realise that between eleven media outlets this averages a payout of £45,000 per company. This is hardly an enormous expense, if you consider that these are vast organisations with multi-million pound budgets. In fact, it doesn't even tickle the bottom-line.
When Madeleine McCann disappeared and Murat was first named as a suspect, British newspapers had to take a call as to whether they should take the risk and apply different rules to Murat's case because he was abroad and there was less likely to be an issue with contempt of court proceedings, or libel. The Murat story sold large quantities of newspapers, and made substantial revenue for media outlets.
If media owners look back on Murat's libel case and consider whether they would have reported it in the same way again knowing of today's outcome, I suspect they probably would.
So while the Press Gazette's view is that "Big payout for Murat could increase pressure on journalists", media bosses may well look at the bottom line and say - it's just the cost of doing business.
Martha Stewart Refused Entry to Britain
Martha Stewart, America's best known TV lifestyle guru was refused an entry visa to the UK.
Martha Stewart, 66, a self-made TV personality, who made millions selling her brand of "homemaking" to US audiences, was found guilty of conspiracy, making false statements and obstruction of agency proceedings - all relating to her sale of stock in biotech company ImClone Systems Inc. in 2001. Stewart was sentenced to five months in prison and five months of house arrest.
The Home Office's refusal to grant Martha Stewart a visa may result in some raised eyebrows. Although the Home Office can refuse a visa to anyone at its discretion, it does have fairly comprehensive and detailed guidelines on refusals. The two reasons which could potentially apply to Ms Stewart are on somewhat shaky grounds:
1. Refusal on grounds of criminal conviction - The rules state that an application should normally be refused if that person has been convicted of an offence in any country which, if committed in the UK, would be punishable by imprisonment of 12 months or more.
-> Interestingly, Martha Stewart's sentence was ten months, of which five months we're house arrest. I may be wrong, but I think it unlikely that the Home Office could consider that the sentence would have been longer in the UK, and even if they did, this would be pure speculation.
2. Refusal on grounds that exclusion is conducive to the public good
-> Stewart's trip to the UK was for a speaking engagement at the Royal Academy and some business meetings. How the Home Office or embassy officials thought her visit would be any risk is difficult to explain.
Both of the above are discretionary and depend on the official's assessment of the visa application.
The UK's Independent newspaper speculated that "Lying to government agencies is a federal crime in the United States and could easily be considered a serious enough crime in Britain to warrant exclusion from the country." Another possible reason was that the UK wanted to send out a message that celebrities are subject to the same restrictions as everybody else, although based on its own rules, it could have just as well approved Martha Stewart's application.
Then again, the workings of visa regulations in both the US and Britain are somewhat difficult to predict, and tend to be somewhat arbitrary and often unreasonable. For example, since 1993 the US government has denied visa waiver to people with HIV or AIDS and made the obtaining of any visa very difficult and laden with conditions. This has been subject of quite a lot of campaigning, but to no avail.
The good news for Martha Stewart is that the UK Home Office is in fact much more forgiving than the US when it considers visas for ex-offenders. Whereas in the US your crimes will most likely exclude you forever, in the UK her sentence would be considered as "spent" and therefore no longer relevant after ten years. Even if Stewart is refused an appeal now, it is very likely that she will be granted a visa if she applies in three year's time.
UPDATE (25 June 08, Midnight GMT): And... Boy George was refused an entry visa to the US today, because of "ongoing legal proceedings relating to a charge that he assaulted and falsely imprisoned a male escort who was allegedly chained to the wall of his east London home in April last year, a charge he denies". Of course the two stories are unrelated. But you can't help but put them next to each other. Can you?
Sue Tabloids in France for Privacy and in England for Libel – The Litigation Tourist Packs a Suitcase
The effects of globalisation on law and the accountability of the Media in other jurisdictions is growing (or in plain English - you can be sued everywhere, because you are accountable wherever your content is available online).
Out Law, the online legal site, reported the following case where French law was used to sue british newspapers: British newspaper websites liable in France for privacy invasion,
And it didn't start with privacy. In the past, libel cases were brought to England by foreign litigators, to take advantage of its stringent libel laws, including what became known as 'The Arab Effect'. Rachel Ehrenfeld of The American Centre for Democracy wrote a book Funding Evil: "How Terrorism is Financed, and How To Stop It", which implicates Saudi billionaire Khalid Salim A. Bin Mahfouz and others as supporters of terrorism. Bin Mahfouz sued the New York-based Ehrenfeld in the U.K (see J.D. Tuccille's blog).
And if England is a great place to sue for Libel, France is excellent if you want to sue for privacy intrusion. The courts there feel that under EU legislation they have jurisdiction over content published on the Internet, because it is viewable in France. And now a precedent has been set following the success of Kylie's ex, Olivier Martinez, in suing the Mirror Group and Associated Newspapers.
EU law has power over the Union's members, but in the US, libel tourism has evoked strong emotions and calls for the protection of what many Americans see as a breach of their freedom of speech. Some congressmen are campaigning to legislate against libel tourism, to protect the First Amendment. Congressmen Darrell Issa and Steve Cohen introduced a bill in May 08, to try and prohibit US courts from recognizing or enforcing foreign defamation judgments. (more details in The Hill's Congress Blog)
But don't worry for the wealth and welfare of tabloid journalism just yet. Courts in France traditionally order small payouts and, balanced against the popularity of a story, the likes of the EUR4,500 awarded to Martinez are hardly likely to be a deterrent. The paparazzi are here to stay.