Bulletin board bully fails in libel action

September 1, 2008

The High Court has ruled that defamation occurring on internet bulletin boards is more likely to be slander than libel. The judge said that comments posted on bulletin boards should be distinguished from those in other written forms, for example a newspaper.

Defamation has two limbs: libel and slander. Libel is the publication of a defamatory statement in a permanent form (for example, a newspaper article). Slander is the publication of a defamatory statement in a transitory form (for example, a conversation).

For slander a claimant usually has to show that they have suffered some financial loss as a result of the statement, whereas this is not necessary for libel. Therefore it is generally easier for claimants to bring libel claims rather than slander claims. The rationale is that slanderous material is in a less permanent form than libellous material, therefore the individual concerned is likely not to suffer as much damage to their reputation. As a result they need to show they have actually suffered some financial loss in order to make a valid claim for slander.

Mr Smith ran a shareholder action group aiming to recover shareholders funds from an alleged fraud.  ADVFN operated an investor discussion bulletin board to which Mr Smith contributed. There were various postings on the bulletin board which Mr Smith alleged were defamatory. He therefore launched proceedings against ADVFN and 37 individuals alleging defamation.  

In previous court hearings Mr Smith had obtained a Norwich Pharmacal Order (a NPO) against the website owner ADVFN. A NPO requires a party who is mixed up in a wrongdoing, whether innocently or not, to disclose certain information or documents to the other party. In this case ADVFN had to disclose the IP addresses of those individuals who had allegedly posted defamatory comments about Mr Smith.

The judge observed that bulletin boards were:

• read by relatively few people, who usually shared an interest in the subject;
•  like contributions to a casual conversation; and
• often uninhibited, casual and ill-thought out.

The judge stated that those who participated in bulletin board discussions were aware of these characteristics and expected a certain amount of give and take. Importantly, the judge also observed that people did not read the thread from the start, but instead made their posting and then thought little more about it.

It was these characteristics, and the manner in which bulletin boards are typically used, that led the judge to determine that defamation on bulletin boards is more likely to be slander than libel. Bulletin boards can now be added to the list of internet phone, online video conferencing and instant relay messaging that are deemed, in the realm of defamation, to attract slander rather than libel. It should be noted that defamatory statements in emails and web pages are still to be regarded as libel. 
It will now be more difficult for individuals who believe they have been subject to defamation on bulletin boards to bring proceedings against the individuals who posted them because they will need to show they have suffered some financial loss arising from the defamation. This has implications for businesses hosting bulletin boards as there will be less chance of them being dragged to court and less chance of NPO’s being sought and granted. NPOs can be time consuming and an administrative burden for businesses to comply with.

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