Fair Comment or Libel?

***DeVore*** · 21-06-2006, 17:38

Need a bit of quick help. I've PM'ed Hullaballo the details but this is a general request for direction.

We frequently get posters who post how unhappy they are with a company, or more commonly simply advise another poster "not to touch them with a barge pole".

Then the company finds the comment on Google when doing a vanity search for themselves and goes ballistic on us.

Where do we stand then?

DeV.

Chakar · 21-06-2006, 17:49

Well of course you have a disclaimer distancing boards.ie from the comments of a individual poster.Boards.ie cannot restrict the freedom of speech of posters and basically its not boards business.

mike65 · 21-06-2006, 18:18

he he! Motors has a nice thread going at the moment, I'm thinking of stickying it but with the proviso that complaints about named parties need to be related in detail and that the poster should be willing to stand over his/her
finger-pointing.

Mike.

**gabhain7** · 21-06-2006, 19:00

Just flicking through McMahon & Binchy, "fair comment" is restricted to public matters relating to the Government or the administration of the state or to matters of literary, artistic or similar nature submitted to the public for approval.

Innocent dissemination seems to be an appropriate defence for boards, provided boards in carrying on its business properly neither knew nor ought to have known that the publication in question contained a libel, they are not deemed publishers at all.

However if a publisher knew or ought to have known a statement was defamatory, they are liable. For example in Berry v. Irish Times the defendent published a photo containing an alleged defamatory statement and was held to be the publisher.

jhegarty · 21-06-2006, 19:27

has there ever been a case against an internet board in ireland ?

focusing · 21-06-2006, 19:28

The nature of boards is such that a mod failing to delete a post would create legal difficulties, where innocently carrying the initial post wouldn't create liability.

A post that simply contains a complaint (fact) together with an opinion (comment) is not capable of being libel as long as it doesn't make false or general accusations.

"I bought X from Y Ltd. and it didn't work. Their customer service rep was very rude when I complained. I wouldn't recommend you use them." wouldn't be actionable.

"Y Ltd. are a bunch of crooks." etc. would be potentially actionable.

People sometimes send a "That's libel, I'm going to sue you if you don't delete it" email or letter in the heat of the moment when they see something bad said about them, without any possibility of them actually issuing proceedings.

The extent to which you edit posts is up to Boards Ltd., balancing freedom of speech v. pragmatism.

If you receive a serious threat of legal action, I'd suggest a pragmatic edit to say:

"ABC's post has been deleted by the moderators as the result of a threat of legal action by Y Ltd." which will probably do as much harm to your complainant but is legally fine. It's a nice way to raise two fingers in polite salute.

padser · 21-06-2006, 20:11

Quote:

Originally Posted by focusing

The nature of boards is such that a mod failing to delete a post would create legal difficulties, where innocently carrying the initial post wouldn't create liability.

A post that simply contains a complaint (fact) together with an opinion (comment) is not capable of being libel as long as it doesn't make false or general accusations.

"I bought X from Y Ltd. and it didn't work. Their customer service rep was very rude when I complained. I wouldn't recommend you use them." wouldn't be actionable.

"Y Ltd. are a bunch of crooks." etc. would be potentially actionable.

People sometimes send a "That's libel, I'm going to sue you if you don't delete it" email or letter in the heat of the moment when they see something bad said about them, without any possibility of them actually issuing proceedings.

The extent to which you edit posts is up to Boards Ltd., balancing freedom of speech v. pragmatism.

If you receive a serious threat of legal action, I'd suggest a pragmatic edit to say:

"ABC's post has been deleted by the moderators as the result of a threat of legal action by Y Ltd." which will probably do as much harm to your complainant but is legally fine. It's a nice way to raise two fingers in polite salute.

Thats pretty much exactly what I was going to say.

The fact that the moderating on boards is stricter and more heavily censored then other sites will actually work significantly to your disadvantage.

The post about deleteing posts and saying why is a good idea.

One point on 'I bought X from Y Ltd. and it didn't work'. This is potentially actionable if it turned out not to be true.

Best practive would be to remove anything complained about by companies. Or ensure that it is at the very least factual, and by regular posters who are more likely to be telling the truth.

***DeVore*** · 21-06-2006, 23:31

We've never been successfully sued, we've had lots of complaints and legal letters and on (fairly rare) occasions we have removed posts by users because we felt they were unjust.

Funny you should mention it Focusing, but on two occasions when two (extremely rude and aggressive) people pressed the issue, (one a big rental agency over the Accommodation Forum) I told them I would delete the offending posts but that I would sticky a post of my own explaining the situation and barring their name from EVER being posted again in that forum.

Never heard from either of them again.

But you all seem to have missed my point. I knew years ago when we got into this that speech online in this country has never been free. The threat that *someone* *somewhere* might say something on the site and we'd be liable for it has always been clear and maintains an unhealthy choke lock on people (like us) offering a platform for the public. So, preferably I would like to remove the actionable stuff and leave the fair comment.

Hence I'm looking for rules to decide what is and isnt actionable.

Let me give you some real examples:

"I personally think ABC ltd are a load of crap. Can't really recommend them. They're cheaper cause the cut corners more or less. I know alot of people use their stuff and have no problem with them but you get what you pay for. Again can't comment on their nordic pine windows only have had experience with the pvc windows and their teak front doors. As far as I can say is if you can afford better stuff for your house buy it, if not then think about ABC ltd"

"We were told to steer clear as they glaze from outside and are notorious about having bad measurers in some areas. Just telling you what I was told can't comment other than that."

"The thing that would put me off ABC ltd my mate used them and he is not happy with them"
"I've just completed a job with them, wouldnt touch them with a barge pole!"
"About same price as ABC ltd but better quality"

DeV.

**Chief---** · 22-06-2006, 00:13

Cue complaint from ABC

http://www.abcwindows.net/

focusing · 22-06-2006, 11:20

I'm not sure it would be ethical to ban all mention of a company in general, maybe banning all mention in a particular thread might be more proporionate.

Remember above all, nothing is defamation unless it's untrue.

So, personal experience along the "I used them and was not satisfied and so suggest avoiding them" lines is generally fine (once true), whereas general rumours like the "I've heard / they're notorious for being a shower of crooks" type of post will cause you problems.

Your biggest problem in those examples is:

"They're cheaper cause the cut corners more or less"

I wouldn't stand over the second one either.

Posters relying on personal experience and the experience of people they know should keep you in line with the law. If a poster can prove the content of their post, leave it up, if they can't try the "ABC's post has been deleted by the moderators as the result of a threat of legal action by Y Ltd." edit.

Don't be bullied by idle threats where the content is true or isn't capable of being defamatory.

I'm not a regular on politics.ie, but I remember a thread about an abuse of the planning process by a Fine Gael Councillor in relation to his own property that was locked and edited as the result of a legal threat.

Turned out the threat was from a secondary student from Greystones and was of absolutely no merit whatsoever (the initial post truthfully reflected the planning file which is a matter of public record), but the site's owner was sufficiently bullied to delete all the posts on the subject.

jhegarty · 22-06-2006, 11:36

If the rules had to be enforced like that could you even run boards.ie any more?

I have a problem with my ford focus , it keeps breaking down. It would be hard to discuss a problem with a car without giving the make or model... so shut down motors..

I assume any issues with vodafone/o2/metor/nokia..etc.. would be banned from mobiles , so shut that down...

any problem with windows in computers would be out of the quesiton... so thats gone....

any mention of an airline in travel....

you see where I am going.......

focusing · 22-06-2006, 12:06

That's a good set of examples.

"My Ford Focus keeps on breaking down / I've had 2 Nokia phones and both broke within 3 months / I can never get a reception for 02 in BallyX, I'll never use their products again" should all be fine.

I agree that banning mention of a particular company in a forum is a bad idea.

***DeVore*** · 22-06-2006, 18:44

Unless they need us more then we need them. You'd be surprised how many companies get business (or lose business) as a result of their reputations on Boards.

I've cleaned the thread in question and I'm happy with whats been said now.

DeV.

hullaballoo · 23-06-2006, 15:35

Focusing and gabhain pretty much have most of the angles covered. I think that it's probably a defence to plead innocent dissemination until it's brought to your attention that someone might have an issue with it.

I usually get rid of it on-sight, just to be safe.

maidhc · 23-06-2006, 16:07

I don't think anyone has said anything wrong, but it should be noted that what DeVore is talking about here is a SLAPP, OR "A Strategic lawsuit against public participation".

Despite the "McLibel Case", Ireland, or the UK to my knowledge, have yet to intoduce anti-slapp legislation, however in light of that case, the ECHR Act 2003, and DCC v. Fennell, it is fair to say a strong argument can be made that the defamation laws would be applied quite leniently to boards.ie if ever the occasion arose.

Wikipedia has a good balanced article on the McLibel case:
http://en.wikipedia.org/wiki/McLibel_case

Steel & Morris v. UK. (essential reading):
http://www.worldlii.org/eu/cases/ECHR/2005/103.html

Californian anti-slapp legislation (what we should have):
http://casp.net/cal425.html

21-06-2006, 17:38	#1
*DeVore* The monster's daddy.... Join Date: Feb 1998 Location: Dublin Posts: 25,647 Adverts \| Friends Admin: StarCraft, The Covies	Fair Comment or Libel? Need a bit of quick help. I've PM'ed Hullaballo the details but this is a general request for direction. We frequently get posters who post how unhappy they are with a company, or more commonly simply advise another poster "not to touch them with a barge pole". Then the company finds the comment on Google when doing a vanity search for themselves and goes ballistic on us. Where do we stand then? DeV.

21-06-2006, 19:00	#4
gabhain7 Moderator Join Date: Apr 2004 Location: Dublin Posts: 1,487 Adverts \| Friends Mod: Legal Discussion	Just flicking through McMahon & Binchy, "fair comment" is restricted to public matters relating to the Government or the administration of the state or to matters of literary, artistic or similar nature submitted to the public for approval. Innocent dissemination seems to be an appropriate defence for boards, provided boards in carrying on its business properly neither knew nor ought to have known that the publication in question contained a libel, they are not deemed publishers at all. However if a publisher knew or ought to have known a statement was defamatory, they are liable. For example in Berry v. Irish Times the defendent published a photo containing an alleged defamatory statement and was held to be the publisher. Last edited by gabhain7; 21-06-2006 at 19:14.

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21-06-2006, 17:49	#2
Chakar Registered User Join Date: Feb 2006 Location: Dublin Posts: 1,959 Adverts \| Friends	Well of course you have a disclaimer distancing boards.ie from the comments of a individual poster.Boards.ie cannot restrict the freedom of speech of posters and basically its not boards business.

21-06-2006, 18:18	#3
mike65 Registered User Join Date: May 2001 Location: waterford Posts: 58,488 Adverts \| Friends	he he! Motors has a nice thread going at the moment, I'm thinking of stickying it but with the proviso that complaints about named parties need to be related in detail and that the poster should be willing to stand over his/her finger-pointing. Mike.

21-06-2006, 19:27	#5
jhegarty Registered User Join Date: Nov 2001 Posts: 4,676 Adverts \| Friends	has there ever been a case against an internet board in ireland ?

21-06-2006, 19:28	#6
focusing Registered User Join Date: Jun 2006 Posts: 136 Adverts \| Friends	The nature of boards is such that a mod failing to delete a post would create legal difficulties, where innocently carrying the initial post wouldn't create liability. A post that simply contains a complaint (fact) together with an opinion (comment) is not capable of being libel as long as it doesn't make false or general accusations. "I bought X from Y Ltd. and it didn't work. Their customer service rep was very rude when I complained. I wouldn't recommend you use them." wouldn't be actionable. "Y Ltd. are a bunch of crooks." etc. would be potentially actionable. People sometimes send a "That's libel, I'm going to sue you if you don't delete it" email or letter in the heat of the moment when they see something bad said about them, without any possibility of them actually issuing proceedings. The extent to which you edit posts is up to Boards Ltd., balancing freedom of speech v. pragmatism. If you receive a serious threat of legal action, I'd suggest a pragmatic edit to say: "ABC's post has been deleted by the moderators as the result of a threat of legal action by Y Ltd." which will probably do as much harm to your complainant but is legally fine. It's a nice way to raise two fingers in polite salute.

21-06-2006, 23:31	#8
*DeVore* The monster's daddy.... Join Date: Feb 1998 Location: Dublin Posts: 25,647 Adverts \| Friends Admin: StarCraft, The Covies	We've never been successfully sued, we've had lots of complaints and legal letters and on (fairly rare) occasions we have removed posts by users because we felt they were unjust. Funny you should mention it Focusing, but on two occasions when two (extremely rude and aggressive) people pressed the issue, (one a big rental agency over the Accommodation Forum) I told them I would delete the offending posts but that I would sticky a post of my own explaining the situation and barring their name from EVER being posted again in that forum. Never heard from either of them again. But you all seem to have missed my point. I knew years ago when we got into this that speech online in this country has never been free. The threat that someone somewhere might say something on the site and we'd be liable for it has always been clear and maintains an unhealthy choke lock on people (like us) offering a platform for the public. So, preferably I would like to remove the actionable stuff and leave the fair comment. Hence I'm looking for rules to decide what is and isnt actionable. Let me give you some real examples: "I personally think ABC ltd are a load of crap. Can't really recommend them. They're cheaper cause the cut corners more or less. I know alot of people use their stuff and have no problem with them but you get what you pay for. Again can't comment on their nordic pine windows only have had experience with the pvc windows and their teak front doors. As far as I can say is if you can afford better stuff for your house buy it, if not then think about ABC ltd" "We were told to steer clear as they glaze from outside and are notorious about having bad measurers in some areas. Just telling you what I was told can't comment other than that." "The thing that would put me off ABC ltd my mate used them and he is not happy with them" "I've just completed a job with them, wouldnt touch them with a barge pole!" "About same price as ABC ltd but better quality" DeV.

22-06-2006, 00:13	#9
Chief--- Moderator Join Date: Jul 2001 Location: dublin Posts: 2,883 Adverts \| Friends Mod: Emergency Services	Cue complaint from ABC http://www.abcwindows.net/

22-06-2006, 11:20	#10
focusing Registered User Join Date: Jun 2006 Posts: 136 Adverts \| Friends	I'm not sure it would be ethical to ban all mention of a company in general, maybe banning all mention in a particular thread might be more proporionate. Remember above all, nothing is defamation unless it's untrue. So, personal experience along the "I used them and was not satisfied and so suggest avoiding them" lines is generally fine (once true), whereas general rumours like the "I've heard / they're notorious for being a shower of crooks" type of post will cause you problems. Your biggest problem in those examples is: "They're cheaper cause the cut corners more or less" I wouldn't stand over the second one either. Posters relying on personal experience and the experience of people they know should keep you in line with the law. If a poster can prove the content of their post, leave it up, if they can't try the "ABC's post has been deleted by the moderators as the result of a threat of legal action by Y Ltd." edit. Don't be bullied by idle threats where the content is true or isn't capable of being defamatory. I'm not a regular on politics.ie, but I remember a thread about an abuse of the planning process by a Fine Gael Councillor in relation to his own property that was locked and edited as the result of a legal threat. Turned out the threat was from a secondary student from Greystones and was of absolutely no merit whatsoever (the initial post truthfully reflected the planning file which is a matter of public record), but the site's owner was sufficiently bullied to delete all the posts on the subject.

22-06-2006, 11:36	#11
jhegarty Registered User Join Date: Nov 2001 Posts: 4,676 Adverts \| Friends	If the rules had to be enforced like that could you even run boards.ie any more? I have a problem with my ford focus , it keeps breaking down. It would be hard to discuss a problem with a car without giving the make or model... so shut down motors.. I assume any issues with vodafone/o2/metor/nokia..etc.. would be banned from mobiles , so shut that down... any problem with windows in computers would be out of the quesiton... so thats gone.... any mention of an airline in travel.... you see where I am going.......

22-06-2006, 12:06	#12
focusing Registered User Join Date: Jun 2006 Posts: 136 Adverts \| Friends	That's a good set of examples. "My Ford Focus keeps on breaking down / I've had 2 Nokia phones and both broke within 3 months / I can never get a reception for 02 in BallyX, I'll never use their products again" should all be fine. I agree that banning mention of a particular company in a forum is a bad idea.

22-06-2006, 18:44	#13
*DeVore* The monster's daddy.... Join Date: Feb 1998 Location: Dublin Posts: 25,647 Adverts \| Friends Admin: StarCraft, The Covies	Unless they need us more then we need them. You'd be surprised how many companies get business (or lose business) as a result of their reputations on Boards. I've cleaned the thread in question and I'm happy with whats been said now. DeV.

23-06-2006, 15:35	#14
hullaballoo Registered User Join Date: Apr 2005 Location: lóg n-enech Posts: 6,294 Adverts \| Friends	Focusing and gabhain pretty much have most of the angles covered. I think that it's probably a defence to plead innocent dissemination until it's brought to your attention that someone might have an issue with it. I usually get rid of it on-sight, just to be safe.

23-06-2006, 16:07	#15
maidhc Registered User Join Date: Jan 2005 Location: Cork, Ireland Posts: 5,976 Adverts \| Friends	I don't think anyone has said anything wrong, but it should be noted that what DeVore is talking about here is a SLAPP, OR "A Strategic lawsuit against public participation". Despite the "McLibel Case", Ireland, or the UK to my knowledge, have yet to intoduce anti-slapp legislation, however in light of that case, the ECHR Act 2003, and DCC v. Fennell, it is fair to say a strong argument can be made that the defamation laws would be applied quite leniently to boards.ie if ever the occasion arose. Wikipedia has a good balanced article on the McLibel case: http://en.wikipedia.org/wiki/McLibel_case Steel & Morris v. UK. (essential reading): http://www.worldlii.org/eu/cases/ECHR/2005/103.html Californian anti-slapp legislation (what we should have): http://casp.net/cal425.html