Blogging: The Obvious and Not so Obvious Consequences for Businesses

06 June 2005

The internet age has brought with it a mind blowing increase in the rate at which information can be disseminated. When used legitimately the web is a fantastic marketing, advertising and communication tool for businesses of all sizes, however the ease, speed and cheapness of this medium together with the added anonymity that it can bring to a situation can also be a menace to business.

The practice of ‘blogging’ is becoming a frequent source of complaint. For those not yet familiar with the term, a ‘blog’ is a website primarily set up and managed by one individual or company that is regularly added to and engineered to accept postings from those visiting the site. Very many take the form of online diaries or are set up with a view to sharing a common interest or experience. They provide a very public arena for the unrestricted posting of comments on all manner of topics.

Blogs can provide a fairly high profile outlet for those with an axe to grind be it an aggrieved and embittered ex-employee, former customer or competitor. A blog is a convenient, cheap (or free) and anonymous arena for the public posting of his or her grievances.

To the extent that adverse comment is based in truth, there is little that can be done to suppress it. However, if it is false it may well amount to defamation and, where malice or improper motive can be proved, malicious falsehood. Posting the information constitutes ‘publication’ in just the same way as circulating the information in written form.

If any offending statement appearing online has the following characteristics a claim for defamation may be a possibility ;-

1. The business criticised is named or can be easily identified from the statements made.

2. The statements are false.

3. The statements would lower the business in the estimation of right thinking individuals

4. The statement amounts to more than a mere disparagement of another’s goods or services.

Whilst the legal issues may be quite straightforward, the practicalities may be more of a hindrance and in some circumstances may dissuade a prudent potential claimant from rushing to court to apply for an injunction and claim damages.

The first of these is identifying the main protagonist. Many of the offending postings may be anonymous or under a false name, identifying the main culprit may therefore be difficult. This difficulty can be circumvented by requiring the relevant ISP to produce what information it has as to the offending party’s identity, but this will involve formal steps and some legal costs.

The size of any likely damages award made in respect of a defamatory statement is notoriously difficult to predict. In the absence of specific identifiable, or indeed any, loss resulting from the statement, damages can still be awarded although they are more likely to be nominal in extent. If specific losses have been sustained a party may be compensated for these. However, in circumstances where a business cannot point to any specific linked loss it is difficult to judge whether formal action will be economically proportionate. For the larger business concerned only to protect its reputation and goodwill, pursuing the case as a matter of principle and without concern as to whether a defendant has the means to pay damages or proportionality may still be an option. For smaller, more vulnerable businesses, such considerations will be material when deciding how to proceed.

Taking a pragmatic approach, the possible liability of the ISP is a useful tool for achieving results at minimum cost. Once the ISP knows of the defamatory content it will also be liable if the information remains on the site. Those wanting to err on the side of caution will take the site off line rather than become embroiled in a dispute that really does not concern them.

Similarly, if the offending statement has been made in the course of employment, the employer will be vicariously liable. If for example defamatory statements are made concerning the financial stability of a competitor or the honesty of its employees, unless the employer can show that the statements were made against express instruction or outside the realms of the employment, there is a very good argument for the employer being legally liable. With this in mind, addressing the employer as opposed to the individual may result in the offending material being swiftly removed and certainly prevent a recurrence of the problem.

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