30 July 2008

'Mere vulgar abuse' is the saving grace of bulletin boards users.

A flurry of cases are being dealt with currently by the Courts in the United Kingdom concerning breach of privacy and defamation following the sensation ruling in Max Mosley v Newsgroup Newspaper Ltd , where the judge ordered the News of the World to pay Mr Mosley £60,000 in damages for breach of privacy.

Mr Justice Eady had to deal with a similar case on the 25th July 2008 when hearing the case of Nigel Smith v ADVNF Ltd & Ors. The Claimant brought a claim in libel against the Defendants (which consisted of various individuals) in relation to comments posted on a bulletin board online. The central claim of the Claimant was that he "suffered a sustained campaign of vilification and defamation" by various users of the financial website, ADVFN. He also alleged that these very users also posted the alleged defamations on other financial websites.

An interesting part of the judgment is the section in which the judge considered the nature of communications on online bulletin boards. The judge noted that usually posts on bulletin boards are read by few people with a shared interest in the topic in question. Any contribution to the bulletin board is more akin to contribution to a casual conversation. The judge also argued that such posts are 'often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or give and take.' The judge also noted that the fact the most users posted under pseudonyms or "avatars" had a considerable impact on the nature and content of the exchanges.

Bearing this in mind, the judge came to the conclusion that such posts are more akin to slander (if defamatory).The judge in this case concluded that comments amounted to 'mere vulgar abuse,' bearing in mind the context of these conversations where 'people are just saying the first thing that comes into their heads and reacting in the heat of the moment.' In these circumstances, the judge ruled that the Claimant was not entitled to sue the users of the bulletin board. The case against the platform itself is currently on hold until the Claimant is able to pay the cost award to the platform.

CyberPanda agrees with the substance of this ruling. This case could have heralded the end of open discussions online as the Claimant issued claims against over 27 users. In my view the judge considered a number of additional points (other than the nature of the communications) when reaching this decision including the lack of deep pockets of the sued users, the inability of the Claimant to pay the costs of the Defendants (if he lost the case), and freedom of expression generally. CyberPanda also believes however that more safeguards (whether legal or technological) need to be in place to protect the reputation of people online as well as users of facilities such as bulletin boards.

No comments: