Brian Martin's publications on defamation
Brian Martin's publications
Brian Martin's website
The Internet is changing the way that reputations are made and destroyed. The law is only gradually catching up with the complexities involved, but far more important are new practical options for dealing with online defamation.
In many ways, the net is just a new arena for old problems. Whenever anyone expresses something that lowers another person's reputation, it's potentially defamatory: slander if it's only verbal, libel if it's in writing. Slander is so common as to be unremarked. Nearly every gossip session involves numerous slanderous comments. Calling someone nasty, cheating, uncaring, or even just unattractive is slander. Only rarely do such comments lead to defamation threats, much less actions-fortunately so, because otherwise the legal system could not possibly cope.
Many people treat e-mail with friends and colleagues like a face-to-face or telephone conversation, exchanging all sorts of gossip or dashing off angry complaints. But e-mail is a written medium, so derogatory comments constitute libel. Individuals can save e-mails, and Internet service providers (ISPs) and other organizations archive them. When there is a permanent record, it is far easier to prove that defamation has occurred, so e-mail has opened millions of people to greater risk.
But how great is the risk? Millions of defamatory e-mails are sent every day, yet few lead to legal threats or actions. The main reason is that defamation law is a cumbersome, lengthy, costly, and risky way to deal with attacks on one's reputation.
There are two sides to every defamation encounter. Consider the following examples.
Len, who ran a small business, was accused in a comment on an e-mail list of defrauding clients. Chris, working in a large firm, was unfairly criticized during a chat session with staff at another office. Samantha, a freelance professional, was mentioned on a satirical website with a humorous image.
In principle, Len, Chris, and Samantha could each sue for defamation. In most cases, this would be unwise, not just because of the effort, cost, and delay, but because it wouldn't provide a timely way to protect their reputations. Consider some options.
The easiest response is no response-just ignore the accusations, criticisms, and embarrassments. Most people will pay no attention, and the matter will be soon forgotten. In fact, suing might make more people pay attention to the accusations and may even give the accuser more credibility: When someone sues, people might suspect an attempt to squelch the truth.
Another option is to politely approach the offending party and ask for clarification or a follow-up comment apologizing for any slight. Quite a few offenders will respond favorably, especially the unwitting ones.
For cases that are too serious to ignore or in which the other party refuses to budge, the net offers a wonderful way to respond: Present your own point of view using the same medium. Len can compose a calm rebuttal of the claims about fraud and post it on the same e-mail list within days or even hours. If the rebuttal is convincing, the original accuser will lose credibility.
Chris can respond to the derogatory chat comments in the same chat session, or in a future one, or send e-mails to those involved. The sooner the better: A heavy-handed response to an all-but-forgotten comment will only refresh people's memories of the original slight.
Samantha has a more difficult challenge: dealing with an offensive website. One option is to set up her own website, laying out the facts and providing copies of relevant documents. By incorporating keywords (using "meta tags") and asking managers of related sites to insert links to her site, Samantha can increase the chance that search engines will list her site above, or at least near to, the hostile one.
The basic principle here is to respond to adverse speech with your own speech, in a way that shows your own integrity and good sense. The net provides many more ways to achieve this.
Fred sent an e-mail to the board of directors mentioning irregularities in accounts. He received a writ for defamation. After Hin-Lee set up a website critical of global warming claims, a leading scientist mentioned on the site threatened to sue. Agnes made some comments on a closed e-mail list, dealing with sexually explicit topics, and caused offense to another list member, who, despite Agnes's attempts to apologize, took Agnes to court.
Anyone threatened with a defamation action should examine what he or she said and decide whether an apology is in order. A timely apology often is enough to assuage the complainant, especially if there has been a misunderstanding. This is the everyday process of dealing with hurt feelings, although threats to sue certainly escalate the stakes.
But in many cases the purpose of suing, or threatening to, is to shut up unwelcome comment. Whistleblowers are routinely threatened with defamation actions. Fred thought he was just doing his job, but in effect he was a whistleblower. For this, he came under sustained attack, with the defamation writ as just one component.
Some people who sue are vindictive. They want to hurt their target irrespective of the cost to themselves. There are also some scam artists who, through provocative comments in an e-mail discussion group, will trigger a critical comment about themselves and then threaten to sue unless paid. The target of such an operation is usually inexperienced in such matters and may cough up a thousand dollars rather than resist.
Anyone who is threatened or sued needs to start thinking of legal defenses such as qualified privilege, fair comment, and-not least-truth. But as well as thinking in legal terms, it's worth looking more widely at what can be called the dynamics of free speech. First, consider prevention.
When writing, the most important step to avoid defamation is to present just the facts and let the reader draw the judgments. This applies to e-mails, too. They can be easily forwarded to your worst enemy. A friend from another firm writes to you saying, "We're having difficulties with Helen. She was at your place before, so you know what she's like." It's tempting to pass on a colorful story about Helen that's been going around. Resist the temptation, unless you'd be happy to send a copy to Helen. Instead, restrict your comments to what is well documented or you have personally observed, or pick up the phone to tell about what you've heard on the grapevine.
When publishing on the web, there are many ways to reduce the risk of defamation. Hin-Lee, in setting up a website about global warming-including comments about scientists making a career out of global warming studies-can send sensitive pages to relevant individuals in advance, asking that any mistakes be pointed out. If scientists complain about certain passages, these can be modified. If scientists do not respond, then it will be hard for them to explain later why they didn't take action to prevent publication of objectionable statements.
In sending out text to respondents, it's effective to use a relatively fixed format such as Portable Document Format (PDF), with headers stating that the file is a draft for the named person and not to be circulated or quoted. Further circulation of the text is then attributable to the named recipient. There are ways to make changes to PDF and other such formats, but most recipients do not have the skills, time, or incentive to bother with this.
Circulation of drafts could be done in print; the net simply makes it much easier to do. But websites have a qualitative advantage, too: They can be removed at a minute's notice. If a defamation threat arrives, you can, if you choose, remove the offending page and ponder your next step. Over the subsequent weeks, the page will gradually be removed from caches and search engines, eventually disappearing except for web archives. This is quite unlike print. It's extremely difficult to remove a book from circulation.
Sometimes, however, you don't want to remove a web page. Posting it is a matter of public interest and free speech in the face of self-interested censors. You want to stand up to the defamation threat. You believe the suit is what's called a SLAPP (strategic lawsuit against public participation).
A censor's first instinct is to clamp down on speech rather than join a dialogue. So rather than complaining to you, a censor may go directly to your ISP, claiming that your site is defamatory and threatening to sue. Some ISPs will seek to avoid trouble by pulling your site. The solution: Find an ISP that believes in free speech. Sometimes it's worth going to another country.
Another approach is to get your material published on multiple sites. When a writ arrives, obligingly remove the offending page, but send it to free speech lovers around the globe, inviting them to post it. The result is that your message will receive much greater visibility. After your page is available elsewhere, you can post your own page documenting the attempt at censorship and giving links to postings elsewhere.
Being censored can be a fruitful opportunity to obtain greater attention. In 1990 McDonald's sued two London activists, Dave Morris and Helen Steel, for defamation over a leaflet titled "What's Wrong with McDonald's." Morris and Steel refused to acquiesce, and the subsequent court case was the longest in British history. A "McLibel" support movement developed, with a massive website, including the offending leaflet. The McLibel site is mirrored in several locations to defend it from being taken down. The case was a massive public relations disaster for McDonald's.
Anything that is widely seen as unjust can backfire on the perpetrator, just like the McDonald's defamation action was seen as attempted censorship. Perpetrators typically use five methods to prevent outrage from their actions: cover-up, devaluation of the target, reinterpretation of the action, processing by official channels that give only the appearance of justice, and intimidation and bribery. So it is predictable that those using defamation law for the purposes of censorship will attempt to keep the case quiet (and include silencing clauses in any settlement), denigrate the target, claim that they are simply protecting their reputations, use the law to serve their purposes, and use defamation threats to scare targets and settlement offers to buy them off if they resist.
To cause a defamation action to backfire, you need to counter each one of the five methods of inhibiting outrage. This means exposing the action, behaving honorably, emphasizing the issue of free speech, responding outside of legal channels, and resisting intimidation and bribery. Several of these recommendations go against the grain. Many targets of defamation actions keep quiet because of embarrassment or fears of aggravating the problem, when actually exposing the action and its effects on free speech is a powerful antidote. It's also tempting to go the legal route, sometimes including a countersuit, but a public campaigning approach is usually far more effective in challenging censorship.
The net makes it easier to cause defamation actions to backfire, especially by exposing attempted censorship. If free speech is your aim, then think less of going to court and more of going to the court of public opinion.
Brian Martin is Associate Professor in Science, Technology, and Society at the University of Wollongong, Australia. His research interests include nonviolence, dissent, democracy, and scientific controversy. He is international director of Whistleblowers Australia and maintains a large website on suppression of dissent.