With internet connectivity growing exponentially in the past decade and everyone having the instant potential of becoming an amateur journalist or a home-grown political commentator at the click of a button, the importance of effective libel law provisions is evident, if we want to ensure that citizens have legal recourse to protect their rights and reputation.
In its simplest form, the Press Act controls defamation committed through print, as well as broadcasted comments made on the traditional media. However, in light of the relatively wide definition given to the terms ‘printed matter’ and ‘editor’, one could rightly presume that the law regulating defamation extends its regulatory rule to internet libel, a growing reality around the world, with Malta being no exception.
The Maltese courts have already accepted the notion of online defamation in ‘John Cassar White v Dr Richard Sladden nomine’ where the defendants were ordered to pay €10,000 in damages, after publishing defamatory comments online. With social media users having ‘friends’ or ‘followers’ amounting to thousands, the line of demarcation between what makes a comment a public statement, rather than a private status sent to friends, is ever-fading. In ‘Richard Cachia Caruana v Joseph Grima’, the first case of Facebook libel in our jurisdiction, the plaintiff sued Grima for publishing a defamatory Facebook status about him. In its decision, the court assumed that the owner of a Facebook profile is responsible for content posted through it unless the person can prove otherwise, and found the defendant liable for defamation, ordering him to pay €5000 in damages.
In the high-profile UK case of ‘Lord McAlpine v Sally Bercow’, following unconfirmed, child abuse allegations against a ‘leading Conservative politician’, the wife of the Speaker of the House, Sally Bercow, tweeted: “why is Lord McAlpine trending?*innocent face*”. Her tweets to 56,000 followers were deemed defamatory by McAlpine who sued and won damages which remained undisclosed. In the same case, Lord McAlpine also publicly threatened to sue almost 10,000 Twitter users who had retweeted the comments made about him online.
Although no cases of the sort have as yet reached our courts, the same courts have reiterated time and again (‘Dr Louis Galea v Joe Mifsud’) that every republication of a libel is a new libel, with each publisher being liable for his repetition. However, to what extent is sharing and retweeting on the social media repeating defamatory comments? Does posting a hyperlink to the defamatory comment explicitly mean that the user agrees with such content, thus making him a re-publisher? And what if a person shares a comment to condemn it?
Some have argued that the mere sharing of a hyperlink leading to the defamation is not tantamount to repetition since the person is acting as a ‘mere conduit’, in the same way a British High Court found that Google could not be found guilty of libel, since it was not strictly speaking republishing the defamatory content.
The issue is similar for websites having a comments board which allows third-party posts, creating a scenario where the administrator can be exposed to liability (as an editor or publisher) for comments made by others. This is based on the loosely-defined ‘noticeboard allegory’ based on the case ‘Byrne v Deane’, where a golf club secretary was found liable for defamation after failing to remove a defamatory notice stuck on a board he administered.
Similarly, in ‘Michael Falzon v Sammy Meilak et’, members of the Dockyard Council were found liable for defamatory signs displayed at the dockyard’s entrance, despite not having put up the sign themselves. In this context, it is easy to see how a news portal with a comments board can be found liable for third-party comments.
This reasoning was applied in the New Zealand case of ‘Wishart v Murray’, where the court found that if the owner of the Facebook page knew of defamatory material and failed to remove it within reasonable time, then that failure was tantamount to a tacit endorsement, and thus liability.
Being relatively technology-neutral, the laws regulating libel are well-positioned to adapt to the realities of the internet. This, however, is the first of many steps, which our law and courts need to take to start appropriately regulating human online interaction.
Seeing that the internet is a freely accessibly communication tool with unlimited potential, it may be time for our courts to start recognising the ‘power of viral’ in its deliberations and calculation of damages granted for defamatory libel – since a comment made online may be spread to a reach of individuals which far exceeds that of a common local newspaper printed in a tiny state of around 400,000 citizens. Only time (and jurisprudence) will tell if this approach is to be taken.
www.fenechlaw.com
Thomas Bugeja is an associate at Fenech & Fenech Advocates.