David Potts on cyber libel issue

The Internet, for most, is a wonderful resource that provides us with the ability to communicate instantaneously and access to squillions of pages of information at the touch of a button. For some, however, the Internet is a dark and dangerous place, where unknown or unseen enemies can bring down individuals and corporations through cyber libel and online defamation.

Lawyer, author and defamation expert David A. Potts has penned a book on just this topic: CyberLibel: Information Warfare for the 21st Century. Libel has the potential to affect everyone – not just lawyers, but business executives, government officials, journalists, politicians and even clerical staff who send communications on company letterhead. Even organisations that allow other people to post messages on its website have a real potential exposure to libel actions. In CyberLibel, David Potts brings more than 15 years of research and experience in libel and slander law into focus to show individuals and organisations of all kinds how to manage, protect and restore their reputation from assault and defamation on the Internet.

David will be giving a presentation and signing copies of his book at Books & Books on Thursday, 19 April at 7pm. Ahead of his visit, he was kind enough to share some of his insights on the subject of cyber libel.

As a lawyer, how have you and your contemporaries observed the growing issue of cyber libel during the last 20 years?

I think the best way to describe it is that the libel landscape has evolved with the technical landscape and can be divided into the period before Web 2 and after Web 2. Before Web 2, you had a lot of websites and interactive chat rooms. However, most of the communication was in writing. There was very little podcasting or videocasting. After Web 2, when the technology allowed people to set up their own blogs more easily, access YouTube and podcasts, a whole range of different defamatory statements emerged.

The other major feature is the role of search engines. The search engines now add an extra dimension of problem to people who are attacked. If a company is attacked and then that article or a number of articles appear on the first page of the search engine report pages, then further damage can be done.

How much of an issue is the jurisdictional one?

It is an enormous question for all defamatory statements that involve more than one jurisdiction. That means in the United States, there are 50 different jurisdictions, being 50 different states. On top of that, there are jurisdictional questions when items or statements are published in the United States and can be downloaded in England or Australia or Canada.

The biggest issue revolves around the question of whether the plaintiff is engaged in libel tourism, which means suing in the jurisdiction where they have the best chance of winning.

The High Court in Australia has recently said that a publication in the United States in the Wall Street Journal, which referred to and had an impact on the reputation of a person in the State of Victoria, Australia, allowed that person to sue in Australia for that statement.

What has been the most common question to you in your talks?

It really depends on the audience that I am speaking to. When I am speaking to broadcasters or journalists, their primary concern are:

Freedom of speech, whether they can be sued, whether the laws of libel apply to online activities the way they do in offline and whether they are liable for statements they write.

When I talk to corporations, their concern is the converse. How can they prepare for and respond to cyber libel attacks?

4. Are there any other observations on the topic of cyber libel you would like to share?

Cyber libel attacks can destroy reputations of companies very quickly.

You can fight back, however. There is an atmosphere in some cases of hopelessness and despair, which I think is unwarranted.

The old rules, such as applied in conventional litigation and conventional libel litigation, often have no application and can be counter-productive.

Finally, new rules need to apply and a new paradigm needs to be adopted. The paradigm I am adopting is that libel is a form of information warfare, more precisely, it is a form of guerrilla warfare. As a result, one has to study guerrilla warfare and information warfare to understand how to both prepare for and respond to these attacks.