Is comment free?

May 26, 2011

How can local authorities respond to defamatory comments on the web? Wesley O'Brien looks at the options.

In these times of austerity, many public bodies are making very difficult decisions which impact on staff and service users. The increased level of awareness and scrutiny of these decisions, coupled with the prevalence of social networking sites and online forums, means that local authorities are fighting a daily battle against critical comments posted online, some of which stray into the realms of libel.

Examples of these that we have advised on include:

an anonymous blogger making repeated defamatory statements against a councillor and the council;
defamatory statements made in the press and on websites by a former councillor; and
defamatory statements made online by a serving BNP councillor against individual named officers.

In March 2011, the BBC reported that a Caerphilly councillor had agreed to pay £3,000 compensation together with “substantial” legal costs and to publish an apology, after he posted a libellous comment about a political rival on Twitter.

This article answers the ten most common questions we receive from our local authority clients about this issue.

1. How do I know whether a statement is defamatory?

A statement, whether spoken or written, is defamatory if it is said, or sent, to a third party and if it contains an untrue imputation against the reputation of an individual, company or organisation. Whether a statement is defamatory is a question of fact that the court will determine. The court will apply the natural and ordinary meaning of the words used, or any special meaning known to the third party to whom the words were spoken or sent.

2. Who is responsible for the publication?

The individual posting the comments is primarily liable. However, the operator of the website and the web host may also be liable if they have been made aware of the defamatory material. To find out who is running the website, the operator’s contact details may often be on the website itself. If it is not obvious, the contact details of the domain name owner will be held by the domain name registrar. Various searches can be carried out to establish this.

3. Who is entitled to sue?

A defamation claim can be brought by, amongst others, an individual (and in certain circumstances a group of individuals), limited companies, firms and LLPs. A claim cannot currently be brought by a local authority or by central government or by any other democratically elected governmental body.

4. Can a local authority fund the costs of a claim brought by its employee against a third party?

As the law currently stands, a local authority can fund a claim brought by an individual officer and it can also assist an officer in defending such a claim, where it considers such public expenditure to be justified. The position is, however, different for members where a local authority is only entitled to fund a defence, but not a claim brought by an individual member. The only condition is that the statements made must refer to and be defamatory of the individual concerned.

In all cases you should bear in mind the potential cost, staff time and adverse publicity that a decision to fund a claim or defence could bring.

5. Can I get damages?

Yes, provided you are entitled to make out a claim and you succeed in your claim, the court will award you damages. Damages in a defamation claim are intended to compensate the claimant for the damage caused by the statement to the claimant’s reputation. The current perceived limit for damages in such a claim is £200,000. However damages awards are frequently less than £10,000.

6. Are there any practical steps I can take to limit the damage caused?

It is always worth checking the website’s content policy as it may be possible to request the removal of defamatory material by contacting the web host direct. Unfortunately, the content policy of a number of popular blog sites such as Twitter and Google’s Blogger and Blogspot do not contain any such provision. Others, including wordpress.com, do. Although they will be responsible for the publication, the law provides web hosts and operators with a defence to a claim provided that they took reasonable care in relation to the publication, and did not know or had no reason to believe that what they did caused or contributed to the publication. In practice, it is very difficult for web hosts to rely on this defence once they have been put on notice that they are hosting or making available the alleged defamatory material.

In all cases, including those where it is not possible to make out a claim, it is worth considering whether to formally engage with the person making the statement in order to allay their concerns and to provide them with all the relevant facts. This may help prevent further defamatory statements being made. A positive publicity campaign counteracting the adverse comments may also assist.

7. What defences might be raised?

There are three main defences to a defamation claim:

Justification is the ultimate defence and requires the maker of the statement to prove that the meaning of the defamatory statement is substantially true. They would therefore have to demonstrate that the “sting” or “gist” of the libel is true.
“Honest comment”: this requires proof that the words are: (1) comment and not a statement of fact; (2) based on facts which are true or privileged; and (3) on a matter or public interest. Whether a matter is one of public interest depends on the factual circumstances in each case; however, it has been held that the private character and conduct of a person who fills a public office or takes part in public affairs may be the subject for honest comment in so far as it has reference to or tends to throw light on his or her fitness to occupy the office or perform the duties, but not otherwise. The administration of a local authority is also a matter of public interest. This defence is defeated by malice, which is established if the claimant shows that the defendant acted from an improper motive (e.g. spite, or revenge or personal gain). Proof that the defendant was aware that the statement in question was untrue, or was reckless as to its truth, is conclusive evidence of malice.
Qualified privilege: this defence is available in a range of situations and arises where the person who makes the statement has an interest or a legal, social or moral duty to make it to the person to whom it is made. As with the defence of honest comment, qualified privilege is defeated if the maker of the statement was motivated by malice. Where the statements have been posted online (e.g. in a blog or on Twitter, both of which are potentially viewable by anyone) it would be difficult for the maker to demonstrate that the statements were made only to those who had an interest in receiving the statements (i.e. the community served by the local authority).

The Ministry of Justice is currently consulting on proposals to reform the libel laws, including a draft Defamation Bill. If the Bill is enacted in its current form, the common law defences of justification and honest comment would be replaced by equivalent statutory defences, and a new defence of “responsible publication on a matter of public interest” introduced which would provide a defence where the maker can show that the statement complained of was, or formed part of, a statement on a matter of public interest, and that he or she acted responsibly in publishing the statement. The Bill would also extend the circumstances in which the defence of qualified privilege applies.

8. How can I find out who posted the statement?

Unless the person posting the comment indicates his or her email address or other contact details on the website, it is often very difficult to determine their identity. It may however be possible to obtain an order from the court requiring the web host to disclose to you the identity of the individual or their IP address.

9. Can I get the website closed down?

If none of the practical steps set out above succeed, and provided you have put the web host on notice that the site contains defamatory material, you will be entitled to and may succeed in obtaining an injunction against the web host requiring them to remove the material.

10. Am I liable for statements made by people within my organisation?

Yes, an employer is jointly liable for any defamatory statements made by an employee provided the employee was acting within the scope of his or her employment and authority. The question the court will determine is whether there is a sufficiently close connection between the employment and the defamatory statement.

Wesley O’Brien is a solicitor at Bevan Brittan. He can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it..