Story image

Defamation and the risk with online forums

01 Feb 2011

An increasingly popular feature of the internet is the ability for users to interact online. Indeed, many businesses now see online interaction as a valuable tool for engaging with customers and prospects, and are therefore incorporating online forums into their websites. However, this strategy is not without risk, since by opening up a forum you give your subscribers a platform to say whatever they want, and some of what they say may not be too complimentary about you or others. This never used to be the case.
Internet rings the changes
Before the internet, the only people with the real power to communicate en masse to people were the newspapers, publishing houses and broadcasters. These organisations understood the risk of defamation and would employ people to read for defamation before something was published. That’s because under defamation law publishers are liable for defamation as much as authors. With the advent of the internet, every person now has the ability to publish to a potentially wide audience, and online forums increase the potential to reach that audience. The problem is that publication is now instantaneous, and it is often impractical to check the content for defamation before it is posted on the web.
This exposes the regular person to claims of defamation, and also this puts the forum owner in somewhat of a predicament since the forum owner could be categorised as the publisher of such material. But how does the forum owner know the content is defamatory? For a start, the content could be posted before they even become aware of it and secondly, they have no time or resources to employ defamation readers to give them an answer.
You see, what may appear defamatory may not be defamatory, because there are several defences to defamation. Perhaps the most common defence is that of ‘truth’, namely that whatever was posted was true. There is a similar defence of honest opinion which can be relied upon where the opinion expressed was generally held (in other words, there must be some facts to substantiate the opinion). But, how can the forum operator decide whether one of these defences applies? It is extremely difficult without proper investigation or expert advice. Therefore, should the forum owner exercise a higher degree of editorial control similar to a newspaper editor or magazine publisher?
Editorial control or not?
A few recent cases on defamation (one in the UK and the other in NZ) indicate that if a forum owner exercises a high degree of editorial control, that could make the forum owner more likely to be liable as a publisher of defamatory content. Whereas, if the forum owner can establish that they had very little control over what gets published on their website, then the ability to escape liability may increase.
However, that’s not to say that having a wilful disregard for what is published on your website will help either. Certainly, if a forum owner is made aware of the defamatory content there would appear to be an expectation on the forum owner to go about removing it. If the forum owner hasn’t removed it within a reasonable time, then liability may attach.
Some practical steps for forum owners
So what practical steps can a forum owner take to limit any exposure?  Here are some suggestions:

  • Explain on your website that you have no editorial control over the published content but will investigate complaints thoroughly;

  • Implement a procedure whereby third parties can complain about defamatory content and if necessary you will take down the offending comment after you’ve carried out an investigation;

  • Make it a condition of your terms of use that any comments posted on the forum must either be true or be genuinely held honest opinions. Have an option to terminate the membership of any user who submits a post which breaches this rule;

  • Require your users to indemnify you for any loss that you suffer as a result of comments posted by them. Then if you do get sued, potentially you can make a claim against the author to recover any loss which you suffer. 

Security flaw in Xiaomi electric scooters could have deadly consequences
An attacker could target a rider, and then cause the scooter to suddenly brake or accelerate.
Four ways the technology landscape will change in 2019
Until now, organisations have only spoken about innovative technologies somewhat theoretically. This has left people without a solid understanding of how they will ultimately manifest in our work and personal lives.
IDC: Top 10 trends for NZ’s digital transformation
The CDO title is declining, 40% of us will be working with bots, the Net Promoter Score will be key to success, and more.
Kiwi partner named in HubSpot’s global top five
Hype & Dexter is an Auckland-based agency that specialises in providing organisations with marketing automation solutions.
Moustache Republic expands Aussie presence with new exec
The Kiwi digital commerce partner has appointed a Sydney-based director to oversee the expansion of the company’s Australian footprint.
Epson’s new EcoTank range with two years printing per tank
With 11 new EcoTank printers that give an average user two years of printing and cost just $17.99/colour to refill, Epson is ready to change the game.
Te reo Māori goes global via language app called Drops
If you’re keen to learn a few words of Māori – or as much as 90% of the language, you may want to check out an Android and iOS app called Drops.
Reckon Group announces a steady profit in 2018
Reckon continued its investment in growth throughout the year with a development spend of $14.3 million.