Board and Saying things

[ASB]

Id agree- its def a massive industry

Makes you think overall -

If you call someone a raging homosexual is this libelous? I mean in the context of banter? I must have called people odd things over times! Surely the context of the comment gets taken into account? I guess this is where it gets wishy washy and risky in terms of winning and the cost!

Well if you call them it it won't be libellous - but could be slander. [Though if you call them it on a bb it is written and therfore potentially libellous]. If memory serves there are the following basic defences to a defamtion action:-

- Truth
- Justification

Truth is not an absolute defence. It is possible for true statement to be defamatory - though you would probably have to make a special effort for this to be the case.

Justification may be a defence to the sort of name calling you describe. Though anybody taking action in the sort of circumstances you describe has probably been very poorly advised.

It is NOT Possible to defame somebody unless they are identifiable (and alive). Thus you can call my nickname whatever you like - unless it is actually identifiable as me.

Also you have to be able to actually injure somebodys reputation. Thus you could probably say whatever you liked about Fred West (if he's still alive) and whilst it may be defamatory it is not likely to injure his reputation.

You might like to look up the case of Queensberry and Oscar Wilde for perhaps one of the least sensible libel actions of all time...

[xoggoth]

Much depends on whether some individual wants to make a fuss. There was a case a while ago, which I think was commented on here, with some litigous personality taking legal actions for comments of the sort we throw at each other all the time on here. He did not get anywhere but one could waste a lot of time. I got threatened with libel action twice, ridiculous circumstances but quite worrying at the time.

[Liability]

Id agree- its def a massive industry

Makes you think overall -

If you call someone a raging homosexual is this libelous? I mean in the context of banter? I must have called people odd things over times! Surely the context of the comment gets taken into account? I guess this is where it gets wishy washy and risky in terms of winning and the cost!

[NickFitz]

Odd hey

In which case surely the libel case could be expensive? For example if there are say handful of cyberspace junkies just talking and posting silly things - the real effect of the libel/derog comments wouldnt actually go outside of the forum/cyberspace. So why would you even bother I guess

Its like me calling someone a raving homosexual....? is that libel? Assume not?

In principle, one should immediately seek to resolve any issue that might lay one open to action at law.

In practice, one might choose to take the attitude that one can probably ignore it, as they'll find the cost of bringing an action (which they have no guarantees of winning) so great that they won't bother.

However, it's important to bear in mind that if they do bring an action, and they win, then it is those against whom they brought the action who will be liable for those costs.

At this point, human psychology comes into play.

If it was a question of suing a builder over a shoddily constructed wall, the average person would probably cut their losses on learning that they could lose at court and have to pay both their own and the other party's costs, even though their action seems to have a solid basis (unlike the wall).

With libel, a deeper and more worrisome aspect of human nature seems to come into play: feeling that they themselves have been attacked and insulted, rather than merely ripped off for a few hundred measly quid, people will pursue their grievance to the ends of the world, and never count the cost. Against the best advice of their own lawyers they will insist on pursuing the action.

Sometimes they come to their senses and accept a small payoff, on condition that they receive a public apology that describes it as "a substantial sum in settlement." But that's often the best that can be achieved. People take libel so personally

Whenever these questions come up, I always remember Jerome K Jerome (in Three Men on the Bummel) quoting an editor for whom he used to work:

"If a man stopped me in the street and demanded of me my watch, I should refuse to give it to him. If he threatened to take it by force, I feel I should, though not a fighting man, do my best to protect it. If, on the other hand, he should assert his intention of trying to obtain it by means of an action in any court of law, I should take it out of my pocket and hand it to him, and think I had got off cheaply."

[Liability]

I always understood that for proof of libel it was merely necessary for the material to be defamatory; it was for slander that there was the additional requirement of proving that reputation had been damaged. This was certainly the case in English Law within the last twenty years, although it's possible that changes in either statute or case law have altered this.

The damage (or lack thereof) to reputation would certainly have some bearing on the damages awarded in a successful action for libel, but I don't think it has any bearing on the actual question of whether a libel has occurred.

Still, IANAL.

One interesting aspect of current UK law is that, if your web site has an automated system for detecting and removing offensive material posted by users but something gets through, then you as the owner of that site become liable, as well as the user responsible. If you have no such system, only the user is liable (assuming you remove the offensive material when notified). Weird

Odd hey

In which case surely the libel case could be expensive? For example if there are say handful of cyberspace junkies just talking and posting silly things - the real effect of the libel/derog comments wouldnt actually go outside of the forum/cyberspace. So why would you even bother I guess

Its like me calling someone a raving homosexual....? is that libel? Assume not?

[NickFitz]

Interesting! I was just reading up that in order for libel and all to stick it also has to be proved that the persons reputation was affected. Amazing area of Law I tell you...no wonder these Lawyers are loaded.

I always understood that for proof of libel it was merely necessary for the material to be defamatory; it was for slander that there was the additional requirement of proving that reputation had been damaged. This was certainly the case in English Law within the last twenty years, although it's possible that changes in either statute or case law have altered this.

The damage (or lack thereof) to reputation would certainly have some bearing on the damages awarded in a successful action for libel, but I don't think it has any bearing on the actual question of whether a libel has occurred.

Still, IANAL.

One interesting aspect of current UK law is that, if your web site has an automated system for detecting and removing offensive material posted by users but something gets through, then you as the owner of that site become liable, as well as the user responsible. If you have no such system, only the user is liable (assuming you remove the offensive material when notified). Weird

[Liability]

Even though the material was published in an area with restricted access, it can still be deemed libellous, as it has been published, if only to a small number of people. (A private letter to one other person can be libellous, in fact, as it constitutes publication in law.)

Once the person objecting to the material is aware of it, they could probably obtain a court order requiring the original material to be disclosed by the owner of the restricted forum, for the purposes of bringing an action.

The actual owner of the forum is legally protected as long as they take all reasonable steps to remove the objectionable material as soon as they are made aware of it - witness the frequent removal of threads in General when a certain name is mentioned. However, the person who made the post would still be liable even though the content had now been removed.

For that reason the owner of the forum would be well advised to retain a copy of the data even though it has been removed from the forum, as otherwise they could be accused of destroying evidence.

Interesting! I was just reading up that in order for libel and all to stick it also has to be proved that the persons reputation was affected. Amazing area of Law I tell you...no wonder these Lawyers are loaded.

The most disturbing thing is - how much it costs to get these things to court!! BLOODY HELL!

[NickFitz]

Even though the material was published in an area with restricted access, it can still be deemed libellous, as it has been published, if only to a small number of people. (A private letter to one other person can be libellous, in fact, as it constitutes publication in law.)

Once the person objecting to the material is aware of it, they could probably obtain a court order requiring the original material to be disclosed by the owner of the restricted forum, for the purposes of bringing an action.

The actual owner of the forum is legally protected as long as they take all reasonable steps to remove the objectionable material as soon as they are made aware of it - witness the frequent removal of threads in General when a certain name is mentioned. However, the person who made the post would still be liable even though the content had now been removed.

For that reason the owner of the forum would be well advised to retain a copy of the data even though it has been removed from the forum, as otherwise they could be accused of destroying evidence.

[Liability]

Even though I am no great fan of Wikipedia, the following url may help.

http://en.wikipedia.org/wiki/Hearsay_in_English_Law

The person who made the defamitory comment made it on the assumption that the person concerned would not see it and that the people on the forum could be trusted not to forward it on. By a third party forwarding it on, they could have altered the text, entrapped the poster or changed the context of which the post was made, no matter how explicit the text is. There are a number of things that the court would need to consider. The use of internet material is a difficult area to use in court.

true say mate! true say

[pmeswani]

im just linking him to this thread.

I personally have told him to just speak to someone [lawyer friend or something] as you allude.

Even though I am no great fan of Wikipedia, the following url may help.

http://en.wikipedia.org/wiki/Hearsay_in_English_Law

The person who made the defamitory comment made it on the assumption that the person concerned would not see it and that the people on the forum could be trusted not to forward it on. By a third party forwarding it on, they could have altered the text, entrapped the poster or changed the context of which the post was made, no matter how explicit the text is. There are a number of things that the court would need to consider. The use of internet material is a difficult area to use in court.

[Liability]

That is my understanding. The information is subject to Hearsay. No matter how liable the comment was, it cannot be considered as the basis of a legal challenge. If the poster had posted a defamitory comment on a public blog, then it can be used in court, as it would be considered to be in the public domain.

However, the person concerned would best speak to the CAB for further advice.

im just linking him to this thread.

I personally have told him to just speak to someone [lawyer friend or something] as you allude.

[pmeswani]

Well my logic [albeit I def am not into these things] was that the fact it was NOT on Public View and in a secure forum for handful of people - would surely make it totally inadmissable? Obv if it was open forum like this - than you have a problem. No?

That is my understanding. The information is subject to Hearsay. No matter how liable the comment was, it cannot be considered as the basis of a legal challenge. If the poster had posted a defamitory comment on a public blog, then it can be used in court, as it would be considered to be in the public domain.

However, the person concerned would best speak to the CAB for further advice.

[Liability]

In most cases, it cannot be used in court as it was not obtained by permission of the poster(s), unless it is in the public domain. If this went to court, the evidence will only be omissible if the poster can testify it's authenticity. I don't know if this extends to the forum board owner or the web hosting supplier.

Well my logic [albeit I def am not into these things] was that the fact it was NOT on Public View and in a secure forum for handful of people - would surely make it totally inadmissable? Obv if it was open forum like this - than you have a problem. No?

[pmeswani]

Totally unrelated to our world of contracting but question

If you have a forum that has a protected area for a number of people and in that forum there are just silly remarks about someone or something [calling them and the company c u next tuesdays and just silly things]- and SOMONE in that forum passes it to the person its about - can there be a case for libel/derogatory comments?

Reason I ask this is that before Xmas a Permy I was working with at a said Bank was making posts about someone and he just foned me asking me [like im a bloody lawyer!] but knowing you lot who know the world and everything I thought Id ask!

I just said no they cant as they are admitting to obtaining information not for public view and unless you are really rich it would be totally pointless suing for libel or derogatory comments.

In most cases, it cannot be used in court as it was not obtained by permission of the poster(s), unless it is in the public domain. If this went to court, the evidence will only be omissible if the poster can testify it's authenticity. I don't know if this extends to the forum board owner or the web hosting supplier.

[Liability]

Totally unrelated to our world of contracting but question

If you have a forum that has a protected area for a number of people and in that forum there are just silly remarks about someone or something [calling them and the company c u next tuesdays and just silly things]- and SOMONE in that forum passes it to the person its about - can there be a case for libel/derogatory comments?

Reason I ask this is that before Xmas a Permy I was working with at a said Bank was making posts about someone and he just foned me asking me [like im a bloody lawyer!] but knowing you lot who know the world and everything I thought Id ask!

I just said no they cant as they are admitting to obtaining information not for public view and unless you are really rich it would be totally pointless suing for libel or derogatory comments.