Fiona McAllister: The net and the need for balance over social media

With a building developer in Edinburgh threatening to sue a blogging objector, Facebook having to reveal the identity of a user after defamatory online comments and a criminal appeal under way in London against conviction for a tweeted but not very funny “joke”, social media are increasingly testing the limits of the law.

A post on the internet can be read and re-read instantaneously by millions worldwide, with a direct correlation between that sort of reach and the potential effect of a defamatory statement.

Repeating or communicating defamatory words also creates liability. The owner of the website and the internet service provider (ISP) are potentially liable as publishers for comments posted for assisting in the communication of the statement. However, website owners and ISPs often have little or no control over posts and special defences exist.

A defamation action can be raised in the country in which the defender is domiciled or the place in which the harm took place. With online defamation, the harm can extend worldwide in seconds. This has led to a rise in “forum shopping”; a pursuer choosing in which country they think they will have the best chance of achieving the most lucrative outcome.

The principal attraction to many bloggers is the biggest hurdle in the attempt to remedy defamation – anonymity makes it more difficult to identify who the defender would be.

Requests are often made to publishers to remove comments and reveal the identity of bloggers. These requests are often initially refused over fear of breaching data protection laws. It may therefore be necessary to apply to a court for an order.

This is known as a Norwich Pharmacal (NP) order, from the English case of Norwich Pharmacal Co v Commissioners of Customs and Excise [1974]. Through this and subsequent cases the courts have developed a three-part discretionary test to determine whether persons should be ordered to release details that enable a potential pursuer to raise court action, notwithstanding any obligations of confidentiality.

To succeed with an NP order it is necessary to show: a wrong was carried out by an ultimate wrongdoer; there is a need for the order to enable an action to be raised; the person against whom the order is sought must (a) have facilitated the wrongdoing or (b) be likely to/be able to provide the information required to allow an action to be raised. Assuming these elements are satisfied, the court still retains discretion and can refuse the order if they think the comments are not sufficiently serious.

To bolster the protection provided by NP orders, proposals have been made in the Defamation Bill proceeding through Westminster. This also makes the process for obtaining information easier and less expensive. The bill is likely to be influential in Scotland.

There have been no online defamation cases that have gone the distance here. However, there is an increase in social media posts being used as evidence. For example, Stephen Birrell was jailed for eight months and given a five-year football banning order after being convicted in October 2011 of breach of the peace in respect of Facebook postings about Catholics and Celtic supporters.

There is also a rise in disputes involving social media which do not reach court, such as damaging travel reviews, or football clubs and other businesses posting defamatory statements about competitors.

These cases are frequently resolved by writing to the website owners and asking them to remove defamatory comments. Websites/ISPs are often keen to do so as soon as allegations of defamation are made, simply to avoid liability.

But will the threat of disclosed identity lead to fewer defamatory postings? Some fear that orders to reveal identities will hinder freedom of expression. A comment should not be removed simply for being unfavourable. Everyone has the right to express their opinion. It will be interesting to see what balance emerges.

• Fiona McAllister is a solicitor and media specialist in the dispute resolution team at Burness LLP.