Flowers…uncut

Posted by: Will – Priority Juggler on March 26th, 2008

Question: What should you expect from a blog post on a flowers blog on a flowers website?

Answer: A post about blog libel, of course!

Why?!: Arena started blogging about a year ago (to understand why we blog, please see this post). One of the great things about blogging is that it’s a two way communication process; we’ve learnt a lot from our readers in the last 12 months.

For instance, take Sarah - a ridiculously well-qualified legal eagle. On learning that Arena had started blogging, Sarah very kindly sent us her legal firm’s top tips on how to blog “safely”. Whilst we’re pretty uncontroversial in our blogging topics, generally liking to talk about flowers and gifts and sometimes web-related things or ethics, we found the guidance very interesting reading. We then thought our more webby readers might also find this of interest. Sarah happily said we could publish it, on condition that we anonymised it (to spare her inbox).

In blogging, there are some risks, but they’re easily manageable with a few simple rules. If you don’t know the rules, you could cause yourself significant trouble, as demonstrated by this recent (and admittedly plain stupid) example of blog self-destruction. So what are those rules…

GIGANTIC FLASHING DISCLAIMER - WE AREN’T LAWYERS SO DON’T RELY ON THIS INFORMATION. SEEK YOUR OWN LEGAL ADVICE!

Our Top 3 Tips
1. The difference - Slander vs Libel - simply, slander is spoken defamation and libel is written defamation. Simple. But, to complicate matters, slander and libel can both be described as verbal (as they both use words) but only slander can be described as oral (spoken) or aural
(heard), as slander involves the defamation being said out loud. Confused? So were we!
2. A blog isn’t exempted from the real world - just because a blog is, well, a blog and all webby and modern and stuff, it doesn’t mean that all of sudden the rules governing the rest of the world have suddenly been thrown away and we can write what we want. We can’t. The rules on defamation apply to blogs just as they do to all other media, be the author a business or an individual.
3. Comments - TOP TIP - Moderation method is surprisingly key - This is a tricky one. Comments on blogs can be administered by the blog “owner” in one of two ways.

1. “We never moderate, - all comments go up automatically.”

Or (the more common approach):

2. “All comments are read and manually approved”

In case 2, comments are manually reviewed to ensure that comments are genuine and not irrelevant “spam” comments).

The latter approach gives a better quality of comments BUT also brings with it a potential legal danger.

If:

• a comment has been reviewed and published by the blog owner;

• that comment is subsequently found to be slanderous; then

• it is the blog owner who is liable not the original author of the comment.

If there had been no “moderation” or “approval” of the comment, and the comment had simply appeared automatically, the blog owner would not be liable. A good analogy is a newspaper. If a newspaper knowingly publishes a slanderous article by a journalist, it’s not the journalist who gets hit, but the newspaper (fair enough). Same for blogging.

So, if you manually approve comments on your blog, then please bear the above in mind. So that’s our top 3 tips done.

Now, for the detail. The following is, word for word, the UK briefing note from a top tier UK legal firm, shared with us by Sarah. So, whilst you shouldn’t rely on this advice, it’s a good guide.

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Client Briefing August 2007

Libel Law Checklist

The critical elements of libel law are that the statement is defamatory and that it has been published and that it identifies the claimant. The claimant has to prove its case on the balance of probabilities.

• A statement is defamatory if it lowers a person in the estimation of the right thinking members of society;
• A statement is published if it is communicated in writing to one or more persons; and
• A statement identifies the claimant if it refers to him or her. Generally, the claimant will be named and the issue will not arise but an unnamed but identifiable claimant will be able to sue. [Will: see a famous recent UK example of this exception here.]

In conclusion, the burden of proof on the claimant can be conveniently divided into three elements:

1. The defamatory statement: do the words convey a defamatory meaning?
2. Publications by the defendant: if the answer to (1) is yes, has the defendant published or been responsible for the publication of the defamatory statement?
3. Reference to the claimant: if the answers to (1) and (2) are yes, would the defamatory statement be reasonably understood to refer to the claimant?

Even if the claimant succeeds under each head and establishes a claim in defamation, this does not necessarily mean that he will win the case. It then falls to the defendant to establish one or more of the available defences. The most common defences are justification, fair comment and privilege.

Justification

A defendant “justifies” when he contends that the defamatory statement is true or substantially true. It is only necessary for a Defendant to prove that the “sting of libel” is true, not every detail.

Fair Comment

A Defendant must overcome four hurdles in order to establish this defence:

1. The statement must be comment and not fact.
2. The comment must be based on facts that are themselves true.
3. The comment must be one that a “fair-minded” man could honestly hold.
4. The subject matter of the comment must be of public interest.

Absolute Privilege

Absolute privilege is a complete defence. The law recognises that public interest may require that a person should be protected from liability in some circumstances for a statement which is defamatory even though the words cannot be proved to be true or defended as Fair Comment. Absolute privilege applies to limited situations only, such as statements made in the course of parliamentary or judicial proceedings , or contemporaneous and accurate reports of such proceedings.

Qualified Privilege

The exact boundaries of this defence are uncertain. Qualified privilege may arise in relation to a statement made by a person in pursuance of a legal, social or moral duty to a person who has a corresponding duty or interest to receive it (for example, a prospective employer who is seeking a reference from a former employer), for the protection of a legitimate interest or fair and accurate reports of judicial proceedings.

——-

Okay, so I’ll admit that it’s hardly a page turner like the Da Vinci Code and this post is unlikely to threaten the Harry Potter series in the popularity stakes, but, personally, I’m very glad I now know where I stand and what to avoid. For example, the implications of the comments reviewing thing caused me to double check the comments on a post from a while back, about some trouble Interflora had.

Hopefully this was helpful. Thanks again to Sarah for her help. We really appreciate it and we welcome feedback and comments from all our customers and visitors.

Now, for those feeling dangerously under supplied with flower pictures, here is my favourite Arena bouquet (again) - it is stunning and every time I see one I simply have to stop to take it in.

Back to flowers next week!

REMINDER OF GIGANTIC FLASHING DISCLAIMER - WE AREN’T LAWYERS SO DON’T RELY ON THIS INFORMATION. SEEK YOUR OWN LEGAL ADVICE!

Filed under: Big Mistakes, Ethics & Environment, Matters Webby, Setting up on March 26th, 2008

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