Defamation claims can help individuals or legal entities to protect their reputations from libel or slander. When such claims concern online comments made by unknown individuals, however, seeking redress can feel like tumbling down a rabbit hole. Here, we discuss possible action against the platform hosting the defamatory comments and the routes available to uncover the identity of the anonymous poster.
Online trolling through defamatory remarks affects both individuals and businesses. For businesses, trolling can lead to loss of sales and even customer trust, with false reviews and scams some of the many ways in which anonymous online trolls target businesses. It is, according to one businessman, a “pandemic of its own”.
The ability to bring a claim for defamation affords some protection in such situations, providing both individuals and legal entities with an avenue for seeking potential remedies. The anonymity afforded by online platforms, however, can complicate this. After all, if a claimant does not know who made the defamatory comment, then how will they know whom to claim against?
As the internet has evolved, so too has the conversation on who is ultimately responsible for what is said online, and whether potential claimants can seek redress from the platform hosting the defamatory comments.
Platform or poster – who is at fault?
Where unlawful content has been published by an individual on a third-party website (such as a review website), an action may lie against both: (i) the author of the defamatory material; and (ii) in certain circumstances, the operator of the online platform (also known as the intermediary). While it may be much easier to approach the intermediary to request the removal of the content rather than approaching the author directly, particularly where the statement’s author is anonymous, website intermediaries may be able to rely on several defences regarding defamatory material that third parties have created.
The Electronic Commerce (EC Directive) Regulations 2002 (‘the Regulations’) provide a hosting defence to intermediaries that protects them from assuming liability for content that is published on their platform. This applies so long as the intermediary “does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful or, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.”
Once an intermediary has “actual knowledge of unlawful activity”, it loses the ability to rely on the defence. From this point, they must act quickly to remove the material or take the risk of assuming liability for it.
What are takedown notices?
A takedown notice can be an effective method of ensuring that material is removed. It is a formal request submitted to the intermediary explaining what the defamatory content is and why it is defamatory, and requesting its removal. This essentially places the intermediary on notice of the unlawful material, meaning that they can no longer rely on the hosting defence in the Regulations. To be successful, however, the takedown notice must provide reasons explaining why the content is unlawful and defamatory.
While takedown notices do not always provide an instant solution for dealing with defamatory remarks, they can incentivise the website provider to support a business or individual in removing harmful content before it spreads.
Is it possible to identify who posted the comments?
Some claimants may wish to pursue legal action against the individual that made the defamatory comments, particularly where such comments have been persistent or include serious accusations against the claimant.
Where content has been published online anonymously, it may be possible to obtain a court order that requires intermediaries to provide copies of information that could help to identify the publisher of the defamatory comments.
Known as a Norwich Pharmacal Order (NPO), this can be used to gain access to useful data such as subscriber information or IP addresses, so that the claimant can identify the perpetrator. For intermediaries who have innocently become mixed up in the wrongdoing of others, it allows them to depart from their data protection and contractual terms to help identify the individual(s) responsible.
NPOs are particularly helpful for cases in which:
- someone is persistently posting negative or damaging content and the company wishes to obtain an injunction;
- the content is so damaging that it is necessary to take further action to seek damages;
- the claimant suspects that a competitor, employee, or another specific person is posting the content.
NPOs are not a fail-safe solution. The nature of online data can present certain practical problems, not least that people can easily falsify details when subscribing to websites. Web hosts may also routinely delete data after a period of time. As such, NPO applications must be made quickly to be effective. In applicable cases, the courts can facilitate this by allowing NPOs to be granted ‘without notice’ or without the need for a hearing. For example, we were able to successfully use this method for our clients Neil and Donna Sands in their successful defamation claim that unmasked the anonymous controller of hate and trolling site, Tattle Life. In conjunction, we also instructed intelligence professionals to help uncover his identity, proving that online anonymity is not impregnable.
Understanding the process and the tools available for removing defamatory content from the internet is a vital part of a business’s reputation management strategy – matched, of course, by effective communications and a solid brand identity.