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Commentard-triggered and Web-2.0 lawsuits on the rise

Yow! Numbers double to, er, 16 in a year

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The number of online defamation cases brought to English and Welsh courts has more than doubled in the past year, a new report has said.

In the year up to the end of May, 16 defamation claims were made with regard to comments made online. This is in contrast to just seven such claims last year, the report said, according to the BBC. The overall number of defamation cases brought forward rose from 83 to 86, the BBC's report said.

Legal information firm Sweet and Maxwell, which produced the report, said the increase "points to the growth of social media", according to a report by news website journalism.co.uk.

Proposals for new England and Wales laws on defamation were published in March. Amendments to the proposals are currently being worked on following a consultation on the proposals that ran until 10 June, the Ministry of Justice said last month.

The draft Bill detailed plans it said would better protect freedom of expression. Under the proposals, comments would have to have caused substantial harm in order for them to be labelled as defamatory. Journalists would also be able to rely on the defence that they had published responsibly and in the public interest in defamation cases, the draft Bill said.

Individuals accused of making defamatory comments could also rely on claims that they were expressing a fact or an honest opinion, under the Bill's proposals.

The consultation accompanying the Bill also asked for views on whether special provision should be written into new laws on the subject of responsibility for publication on the internet.

"Secondary publishers", such as internet service providers (ISPs), can be found responsible for defamatory comments posted using their service.

In 1999, physics lecturer Laurence Godfrey won a High Court case against Demon – the ISP concerned – after successfully claiming that an ISP could be liable for defamation in hosting a defamatory comment.

Godfrey had alleged that an unknown person, purporting to be him, made a defamatory posting which appeared on Demon's news server in the UK. The posting could be read by Demon's customers. Godfrey then told Demon that the comments were false and asked the ISP to remove the posting, but Demon did not do so. As a result of Demon's failure to act on Godfrey's request, he won his case against Demon.

Secondary publishers can avoid liability for defamation under defence provisions detailed in the UK's E-Commerce Regulations. The Regulations state that generally a secondary publisher is not liable for any material if it acts as a mere conduit or caches or hosts the material.

Service providers that do not initiate the transmission of defamatory comments, do not select who receives the comments or do not select or modify information in the transmission of the comments are not liable under the mere conduit defence.

In order to avoid any liability for unlawful material, the service provider, upon gaining "actual knowledge" that the initial source has been removed or access to it has been disabled, must also act "expeditiously" to ensure that the information is deleted or access to it disabled.

Free speech campaigners said that amendments to the draft Defamation Bill should include "concrete proposals to stop legal threats against internet hosts bringing down entire websites," a spokesman for the Libel Reform Campaign said, according to the BBC.

Copyright © 2011, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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