31 May 2010
How do you deal with defamatory material on the Internet?
Protecting your brand and your corporate reputation used to be relatively easy. To a large degree you could control the information you put into the public domain and employ various methods to monitor what people were saying about you, taking any action that may be necessary.
Of course, that was all before the Internet. Now, there are billions of publicly accessible web pages and information can be updated in seconds from anywhere in the world.
The majority of people look for information via an internet search engine such as Google. It has become so popular that "to Google" is now a recognised adjective and with approximately 1.59 billion users accessing the Internet, that's a huge number of people potentially searching for material.
But what happens if you find defamatory statements published online about you or your company, and how can you rectify the situation?
Your first step should be to contact the author of the defamatory statement and ask them to remove the material.At the same time, you can notify the internet service provider (ISP) and also ask them to remove the defamatory statements.
Depending on the circumstances, if either (or both) parties unreasonably refuse to take down the defamatory statements then it may be possible to bring a claim for defamation.
This is what happened in the case of Godfrey v Demon Internet (an ISP).
The Court ordered that because Demon Internet stored information posted by other people, transmitted it to subscribers, had knowledge that the words complained of were defamatory and, most importantly, had the ability to take the statement down from the Internet, it could be regarded as a publisher. Therefore, it should have removed the defamatory words once it had been notified, because it had the power to do so.
Where then, does this leave the search engine that led you to the offending material? Are Google and its counterparts also publishers or merely facilitators?
In 2009, the Court was asked to consider if it was possible to bring an action for the publication of defamatory material against Google and decide if the search engine had acted as a publisher or a facilitator.
It ruled that for a person to be fixed with responsibility for publishing defamatory words, there had to be a human, or "mental" element. In the case of Google, it said there was no human element as a search carried out by a user via the Google search engine was performed automatically in accordance with computer programmes. In addition, it said it was practically impossible and disproportionate for the search engine to take down the postings as it was an automatically generated search result.
Therefore, it was not possible to bring an action for defamation against Google as the search engine was a facilitator and not a publisher.
The fast-changing pace of the Internet underlines the fact that online reputation management is a constantly evolving, but essential challenge. As these examples show however, the law does reach into cyberspace and with the right expertise, it can help maintain that all important good name and reputation.
Practical advice:
If a web page containing defamatory statements is removed by the author, the ISP or the Court, please remember that there still may be a snippet or a cache copy on Google. Contact Google's webmaster central to ensure these are removed from its future search results.
For more advice and to discuss your individual or company's online reputation, please speak to our litigation and dispute resolution team on 01753 279039, complete the online enquiry form or email disputes@bpcollins.co.uk.
Posted by Suzanne Smith |
