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Moderators and defamation

Discussion in 'Feedback & Help' started by bwglaw, Dec 15, 2005.

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  1. bwglaw

    bwglaw UKBF Newcomer Free Member

    Posts: 4,681 Likes: 235
    As a lawyer I thought it might be useful to write a reference about 'Moderators and defamation'. This thread follows on from recent events but is not intended to re-open the issues surrounding the decision of any moderators but to give both moderators and forum members food for thought.

    I do not specialise in the law of defamation but I have direct experience of being a recipient of defamatory comments, both personal and commercial, being made in the public arena.

    We all acknowledge that Moderators of any forum have a difficult job, which is most likely to be unpaid. However, according to the laws of England and Wales they have a huge responsibility to ensure that the forum does not breach any terms of the forum and more importantly any laws that may apply, such as the Defamation Act 1996 and previous legislation.

    What is defamation?

    Defamation comes under two headings, namely: Libel and Slander. In short, and in layman's terms, Libel is where a defamatory statement is made in print (this includes, correspondence, posters, internet etc). Slander, whilst not directly relevant is related to the spoken word that may appear to be defamatory.

    What is a defamatory statement?

    There is no clear cut answer and any statement that is alleged to be defamatory will be assessed in the eyes of an ordinary man. Additionally, for a statement to be defamatory it must have reference to the recipient, who may be a business or a person.

    The following article makes a good read to explain what a defamatory statement is.

    http://www.swarb.co.uk/lawb/defDefamatory.shtml

    The role of the Moderator

    As we have already acknowledged that the role of the Moderator is indeed a difficult one and in most cases they have to make a decision based on objectivity.

    In law, Moderators can be held liable for any statement that appears to be defamatory because forum members are deemed to be 'authors' within the meaning under s.1(2) of the Defamation Act 1996. There is no question as to liability that an author will be liable for any defamatory statement. As for a Moderator, who has 'some element of control in publishing a defamatory statement' is likely to fall within the meaning of s.1(2) of the same Act and will therefore be held liable.

    With reference to previous threads, in my opinion, Moderators were correct to remove and/or lock a thread that has no purpose, whether defamatory or not, but has reference to the reputation/goodwill of a person(s) or undertaking.

    In the circumstances, the Moderators as 'publishers' reasonably allowed for the appropriate person to put forward his/her reasoning behind the allegation to afford the recipient to defend accordingly. The person who made the 'allegation' did not take the opportunity to substantiate the allegation nor did the person take the opportunity to post a formal apology and/or correction.

    The Moderators allowed a reasonable amount of time for the issues to be addressed by the parties involved and as they were not forthcoming but were being further aggravated by other inappropiate comments, it was just and right to lock and remove the thread.

    Having said the above, I hope this posting goes some way for us all in understanding the dilemma Moderator's face in reaching decisions as 'ordinary men'

    PS. This article is not intended to be an authoritive statement of the law nor does the author uphold the contents as to completeness and accuracy giving the informality of posting in a forum.
     
    Posted: Dec 15, 2005 By: bwglaw Member since: Apr 8, 2005
    #1
  2. Jayne

    Jayne UKBF Newcomer Free Member

    Posts: 2,921 Likes: 8
    That was a great idea to put this on, very interesting reading. This will make people think a bit more careful before posting in future, I think.

    The mods do a great job and I wouldn't like to have to do it.

    Jayne :D
     
    Posted: Dec 15, 2005 By: Jayne Member since: Aug 6, 2005
    #2
  3. Eagle

    Eagle UKBF Legend Free Member

    Posts: 5,382 Likes: 598
    Great article! :)
     
    Posted: Dec 15, 2005 By: Eagle Member since: Oct 3, 2004
    #3
  4. Ozzy

    Ozzy Quite simply, me. Full Member - Verified Business

    Posts: 3,398 Likes: 156
    Thank you Jonathan for an excellent and informative post which will help others understand why sometimes posts need to be removed even if they might make an "interesting" read/debate.
     
    Posted: Dec 16, 2005 By: Ozzy Member since: Feb 9, 2003
    #4
  5. Pebble Communications

    Pebble Communications UKBF Newcomer Free Member

    Posts: 476 Likes: 0
    That was really interesting. Would you mind if I copied it and posted it in the moderators' private forum of another site I help moderate (nothing to do with business)?
     
    Posted: Aug 6, 2006 By: Pebble Communications Member since: Jan 7, 2006
    #5
  6. bwglaw

    bwglaw UKBF Newcomer Free Member

    Posts: 4,681 Likes: 235
    Yes, provided you copyright and link it to http://www.handsongroup.co.uk
     
    Posted: Aug 6, 2006 By: bwglaw Member since: Apr 8, 2005
    #6
  7. J_B

    J_B UKBF Newcomer Free Member

    Posts: 8 Likes: 0
    wow, great article. I'm a Community Assistant on another site, so I'll put it in our mod forum too, if you don't mind. Thanks!
     
    Posted: Oct 6, 2006 By: J_B Member since: Oct 6, 2006
    #7
  8. I, Brian

    I, Brian UKBF Newcomer Full Member

    Posts: 2,013 Likes: 821
    I would say it's worth making a distinction between "moderator" and "admin". It's the site admin who is likely to carry the can on defamation issues because in owning the site, they are ultimately responsible for what is published on it.

    I ran into this very issue this time last year - some people posted complaints on Platinax about another company's business practices. They questioned the company's motivations. And that was defamation.

    The company sent a very aggressive solicitor out against me, so I had to take on a big Scottish lawyer (defamation applies similarly in Scotland, with only a few deviations on law in England & Wales, so far as I understand it) in order to address the matter to the relative satisfaction of all parties.

    The curious thing about defamation law is that you are innocent until proven guilty - unlike most other law - so any potentially defamatory claims must be proven or provable.

    Because I own a number of forums, I now take a much more aware approach to defamation.

    Ultimately, whatever disclaimers you issue, if you're in the UK and publish to the internet, you are liable in the eyes of UK law (according to the relevant jurisdiction).

    2c.
     
    Posted: Dec 28, 2006 By: I, Brian Member since: May 18, 2005
    #8
  9. multilingual

    multilingual UKBF Newcomer Free Member

    Posts: 1,656 Likes: 4

    I always thought that our entire legal system was based on being innocent until proven guilty.

    :|

    JB
     
    Posted: Dec 28, 2006 By: multilingual Member since: Sep 27, 2005
    #9
  10. bwglaw

    bwglaw UKBF Newcomer Free Member

    Posts: 4,681 Likes: 235
    Both Moderators and Admins can be liable if it can be proved on the facts that they both, or either have control of the site content.

    Quite, however, parties are encouraged to settle the matter amicably to avoid any defamatory statement being 'proved' in the Courts, which at this point will prove to be costly. Some statements are so malicious there requires little proof since whether the statement is malicious or not will be subject to interpretation. Some statements can be 'proved' at the outset and not necessarily by the Court, who only uphold whether the statement has proved to be dafamatory in nature.
     
    Posted: Jan 7, 2007 By: bwglaw Member since: Apr 8, 2005
    #10
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