Defamation law and the internet

If you or your business are slandered online (or if your website, even inadvertently, puts up something libellous) what are your legal options? LUCINDA SCHMIDT

By Lucinda Schmidt

If you or your business are slandered online (or if your website, even inadvertently, puts up something libellous) what are your legal options?

When Melbourne real estate agents Paul Castran and Mark Forytarz were upset by allegations published on a consumer advocate website, they didn’t even bother suing the website owner.

Last December, they lodged a defamation writ in the Victorian Supreme Court against Google, in what some legal experts have described as a worldwide test case of the reach of defamation laws.

The case, which is still in its early stages, highlights two of the biggest risks the internet poses for business owners. First, if someone doesn’t like you or your company, they can tell the world – in a website article, on MySpace, through a blog, in a chat room. And anytime someone Googles your name, up pop the comments. Forever.

Second, if you have your own company website, you need to be careful not to defame anyone. Not just in the online content that you prepare, but also in user-generated content like blogs and feedback sections. You’re the publisher, and you are responsible for what’s on your website.

“If you are hosting a website, you have to treat it the same way as if you’re publishing a newspaper,” says Nicholas Pullen, a partner at TressCox lawyers and author of Digital Defamation. “You have to monitor it. It’s not a good excuse to say ‘whoops, I didn’t notice’.”

Pullen says that if you allow others to post things on your website, it’s prudent to have a delay before it goes up, so you can check it – some big companies have staff dedicated to monitoring this. For most smaller companies the budget won’t stretch that far, but Pullen still urges some form of real-time monitoring.

If something gets through, and you are hit with a letter of demand, the safest thing is to take down the material, according to Matt Collins, a Melbourne barrister and author of The Law of Defamation on the Internet.

“I always advise clients; when in doubt, take it down,” he says. Even though Australia’s uniform defamation laws, introduced in 2006, have liberalised free speech by making truth or an honestly held opinion a complete defence, he says the only way to avoid being sued – or at least minimise the risk – is to remove the comments.

But what if the boot’s on the other foot, and someone has defamed you or your company?

The first thing to remember is that companies with more than 10 employees can no longer sue for defamation (unless they are not-for-profit). Collins says there are a couple of alternatives – section 52 of the Trade Practices Act, which prohibits misleading and deceptive conduct, and the old common law tort of injurious falsehood. But he warns that both are difficult to prove.

Another option for companies with more than 10 employees is to argue that the defamatory comments were really about the business owner, rather than the company, because the rule only applies to the company itself, not the people who run it.

“But really, it’s pretty much a free-for-all against bigger companies,” Collins says.

Even for smaller companies, there’s another hurdle. An honestly held opinion is not defamatory. If someone has had a bad experience with your company or its products, they are allowed to say so. It’s only defamatory if they start straying into personal territory, such as suggesting the company is run by crooks or is deliberately ripping off its customers.

If you’re still determined to forge on, Collins says there are a few attack strategies. You can contact the person who wrote the material – if you can trace them. A better option is to target the website owner and/or the internet service provider.

The usual first step is to contact the website owner and ask them to remove the material. If you get no joy from them, the internet service provider is your next port of call. Once they are put on notice that you object to the material, and given reasonable time to force the website owner to take it down, they lose their legislative protection against defamation.

Of course, even if the website removes the material, you are still stuck with the problem of copies of it on other websites, rearing its ugly head every time someone uses a search engine for your name or your company’s name.

“As soon as something goes up on the internet, it can be mirrored, copied and cached in lots of places,” says Collins. “So you can get it pulled from one place and it pops up in another. It’s not like pulping a book or an injunction against a newspaper.”

One US business, RemoveYourName.com, has come up with a solution – sort of. It claims to be able to make sure negative information about you or your company does not appear on the first one or two pages of “major search engines”. Its search engine optimisation service-in-reverse costs $US1995 for a “business package” or $US695 to $US995 for individuals.

Collins suggests a different strategy – if you’re prepared to take on Google et al in court. Although he says there are no cases where Google has been successfully sued to remove copies of material from its search engine, he says that, in theory, the same principles should apply as for internet service providers – once it is on notice, it should remove the material. The Castran case will test this.

“You probably aren’t going to get 100% of this defamatory cancer, but you want to remove as much of it as possible,” Collins says.