Defamation on the Internet - In Business Summer 2002

01 July 2002

Email is now a routine part of business life. The nature of the medium means comments can be made instantly like speech, but recorded like a letter. This immediacy makes it difficult for employers to check business correspondence sent by email.

The high court has recently considered the liability of Internet Service Providers (ISP's) for comments made on virtual bulletin boards in the case of: Totalize plc -v- The Motley Fool Ltd and Another. The facts of the case were that a contributor – identifiable by the name "Z Dust" made defamatory comments about the claimant Totalize plc on discussion boards run by The Motley Fool Ltd and Interactive Investor Ltd. In both cases, Totalize complained to the ISP's who immediately deleted the offending comments and barred "Z Dust" from making any further contributions. The action brought by Totalize was an application to compel the ISP's to disclose the identity of "Z Dust" so that Totalize could consider whether or not to bring an action in defamation against him.

Both ISP's refused to disclose the identity of "Z Dust" claiming that to do so would be a breach of the Data Protection Act 1998. Interactive Investor Ltd also claimed that to disclose the identity of "Z Dust" would breach its own terms and conditions prohibiting the disclosure of personal details about account holders. The ISP's also cited a 1991 case which interpreted the Contempt of Court Act 1981. The act provides that no court may require a person to disclose the source of information contained in a publication for which he is responsible, unless it is established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or a crime.

Considering the case, the judge found in favour of the claimant and granted the application on the basis that in spite of a clear policy of confidentiality offered by both ISP's, it was necessary in the interests of justice for "Z Dust's" identity to be disclosed to allow Totalize to consider bringing proceedings. In his judgement, the judge noted that: "To find otherwise would be to give the clearest indication to those who wished to defame that they can do so with impunity behind the screen of anonymity made possible by the use of websites on the internet".

The moral of the story? Do not make anonymous defamatory statements on the internet.

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