A blog on why norms matter online

Sunday, April 7, 2013

Can you prove somebody is an idiot? Defamation between freedom of expression and protection of reputation

Virgil's Fama is fleet-winged and swift-footed. 

Defamatory statements on the Internet, too.
(c) Kettemann 2013
Just as the fama in Virgil’s Aeneid (the etymological root of defamation) negative rumors harmful to someone's reputation prosper on the Internet. 
"Fama, malum qua non aliud velocius ullum: mobilitate viget virisque adquirit eundo, parva metu primo, mox sese attollit in auras ingrediturque solo et caput inter nubila condit. [...] progenuit pedibus celerem et pernicibus alis, monstrum horrendum, ingens, cui quot sunt corpore plumae,tot vigiles oculi subter [...] tot linguae, totidem ora sonant, tot subrigit auris." 
“[Fama] flourishes by speed, and gains strength as she goes: first limited by fear, she soon reaches into the sky, walks on the ground, and hides her head in the clouds.[…] fleet-wingedand swift-footed, […] who for every feather on her body has as many watchful eyes below […], as many tongues speaking, as many listening ears.”
Many tongues speaking indeed, many listening ears, many writing fingers on keybords and watchful eyes for youTube videos. For a study on  freedom of expression on the Intenret to be published by the Council of Europe I've looked at the issue in some more depth. What follows are a few important markers. But for an overview of the jurisprudence towards a "right to reptutation" I encourage you to have a look at  Stijn Smet's excellent article on Freedom of Expression and the Right to Reputation: Human Rights in ConflictAmerican University International Law Review 26 (2011) 1, 183-236.

But let's get back to fama and her wings and feet. 

One thing is clear: Internet platform providers, site moderators and bloggers have to take care not to engage in defamation and journalists reporting on events and news have to be careful not to publish content that is objectively defamatory. They have to avoide giving fama wings and feet, a forum and a multiplication vector.

As I  have argued in two previous postings (here and here), liability may ensue - and the liability regime established by some national courts is problematic; a definite answer by the European Court of Human Rights is still out though there are some positive indications in its previous case-law.

Now, why is defamation such a problem. 

While truth is an absolute defense against a claim of defamation, very often it can be difficult to establish or very costly do so. A customer on a travelling forum, for instance, might say that a specific hotel was a bad choice because of the small rooms and the broken appliances. This may be their opinion (‘bad choice’) but it also contains a statement of facts (‘broken appliances’). Once the hotel identified in the review published on the site asks the website owner to take down the post (on the argument that it is defamatory) the owner has a clear choice: either delete the post and thus arguably infringing upon the freedom of expression of its users or keeping the post and thus, having ‘owned up to it’, risk a defamation-based suit by the hotel.

The risk in the defamation suit is to prove the veracity of the statement. Unfortunately for the owner of the travelling website that duty now falls upon them. Thought the original poster may help, they are difficult to be legally forced to do so. The website owner - by themselves - will usually have a very hard time indeed proving that at a certain date in, say, 2011, the appliances in one specific hotel room in a small village somewhere in, say, California were faulty.

Voicing opinions (value judgments) online cannot amount to defamation, only statements of fact can be defamatory. As the European Court of Human Rights ruled in Lingens, “[t]he existence of facts can be demonstrated, whereas the truth of value judgments is not susceptible of proof”.

However, the Court will look the context of a statement to determine whether it is a true opinion or rather a statement of facts disguised as a value judgment.

Freedom of expression and the right to reputation as a weapon against defamation often conflict. The European Convention on Human Rights only mentions reputation in Article 10 (2) as a legitimate aim that would allow a restriction of freedom of expression: “for the protection of the reputation or the rights of others”. In a number of cases, centrally Pfeifer v. Austria (with regard to Article 8) however, the Court has developed a right to reputation from this basis as being part of a person’s right to respect for private life.

More recently, in Karakó v. Hungary Court seemed to qualify its strong position in Pfeifer arguing that only “factual allegations [of a] seriously offensive [with an] inevitable direct effect on the applicant’s private life” warrant protection a position it largely held in Polanco Torres and Movilla Polanco v. Spain.

In Polanco Torres (regarding an article alleging unlawful dealings and dirty money published first in the El Mundo newspaper) the Court ruled that the journalist had sufficiently verified the veracity allegations contained in the article. Their right to impart information that was in the general interest was given more weight than the right of reputation.

What makes this case especially interesting for freedom of expression online is that the article under review was republished by another newspaper, Alerta, that was also charged with defamation but unlike El Mundo convicted of it in the national courts because the journalists at Alerta had simply copied the article from El Mundo without checking the veracity of the allegations. We see: Merely republishing defamatory allegations without ensuring their veracity is highly problematic. 

In the 2011 case of Editorial Board of Pravoye Delo and Shtekel v. Ukraine the Court had another opportunity to assess the limits of defamation. The Court ruled that Article 10 must be interpreted as to imposing on states obligations to create an appropriate regulatory framework to ensure effective protection freedom of expression on the Internet for journalist. Pravoye Delo is therefore to journalistic freedom online what K.U. v. Finland is to protection of minors on the Internet. 

The editorial board of the Ukrainian newspaper had been fined for publishing defamatory statements taken from the Internet accompanied by an editorial in which they distanced themselves from them. The Court found fault with the reluctance of the local courts to apply protections regarding offline media to online surroundings. The Court agreed that

“[the] risk of harm posed by content and communications on the Internet to the exercise and enjoyment of human rights and freedoms, particularly the right to respect for private life, is certainly higher than that posed by the press. Therefore, the policies governing reproduction of material from the printed media and the Internet may differ. The latter undeniably have to be adjusted according to the technology’s specific features in order to secure the protection and promotion of the rights and freedoms concerned.”
Just because the legal treatment of offline and online publications may differ, not applying safeguards at all is a violation of Article 10. This does not mean, however, that newspapers have to make individuals aware of potentially defamatory information. In the 2011 case Mosley v. the United Kingdom the Court ruled that the United Kingdom cannot be faulted in not giving a public figure whose sexual activities had been recorded and published in form of images and videos on a newspapers’ website the possibility of an injunction to prevent publication, even if the publication was violative of his right to private life. 

Taken together the case law of the European Court of Human Rights contains important markers for navigating between the right of freedom of expression and the right to private life, between legitimate publications in the public interest and defamatory comments. A key lesson, however, is – again – that states need to apply offline free expression protection guarantees to online situations, even if they have to developed in recognizance of the special impact Internet publications can have.

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