Bains Cohen takes on Facebook in internet bullying case

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  • Highly commendable from Bains Cohen & John Cooper QC. Clear anomaly in current legislative protection afforded to victims. Let's hope for some reform soon to combat this.

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  • This is awesome and much needed.Hopefully we will get the same kind of thing in the United States. In my area, we are having a serious problem with a website called Topix. It is nothing but libel and defamation.

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  • Nice to see lawyers on the right side of a case of bullying relating to the internet
    *cough cough ACS Law*

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  • Having just an IP and email address isn't proof that someone was alleged to have committed this act.

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  • Judges do not live in the real world or understand the damage caused by internet harassment/defamation/libel. They rarely use Facebook or Twitter and have little grasp of the fact that reputations can be trashed on-line very easily, not only damaging someone's private reputation, but also financially too. Individuals are not the only ones using the web. The majority of employers now vet their staff's profiles or prospective employees to avoid any embarrassment further down the line.

    Unfortunately, this lack of comprehension of the way the internet can spawn new defamation (& how quickly) led to a poor decision by the judiciary (Smith v ADVFN). Hate campaigns can blow up as quickly as using a box of matches & a can of gasoline. Indeed, this is why they are sometimes termed "Flame Wars" where both sides publish vituperative posts on bulletin boards. It may seem to the Judges that each side are being equally abusive (a plague on both your houses), but in fact, it's generally the internet bullies that appear to have the upper hand attacking their latest victim & the easier course of action (for the Judge) is to believe the majority (who collectively lie) than the individual claiming to be a victim. After all, it’s difficult for people that do not know each other to conspire isn’t it?

    No, the internet has changed this. It’s far easier for the bullies to act in concert, because the history of the attack is there for all to see and review again & again until their stories match. It is even possible for the attackers to conspire by setting up private discussion boards (as actually happened in the above case) so they can plan their attack on the victim. Even to organize a flash mob protest/demonstration outside the victim’s home.

    Unless the judiciary come to terms with the dangers of internet defamation, the number of cases being handled by the courts could spiral out of control. Take the McAlpine case as an example. He was defamed by literally thousands of people on Twitter, not to mention the bulletin boards, chat rooms and blogs. To make it easier for potential defendants to withdraw, McAlpine & his lawyers offered them a easy route to make amends. They admit their guilt, make a contribution to charity & a statement/tweet withdrawing their offensive comment. On the whole this has worked, however, a few high profile claims are bound to reach the High Court.

    The problem is that unless the way defamation cases are handled changes, then it will be easier for the victims to take the harassment route, where there are less defenses, than to seek the IP address of the attackers, identify them and then bring a defamation claim.

    In an ideal world, a mediation/arbitration step would take place before a claim was issued, giving both Claimant & Defendant the opportunity to make their case at little or no cost, then either back down, withdraw and apologise (as McAlpine defendants did) or proceed to the next level in the certain knowledge that the costs will increase exponentially.

    The biggest problem with this though is the anonymity afforded people who post on the web. Unless you can identify the opponent, then you cannot negotiate through mediation/arbitration. Furthermore, the way that Norwich Pharmacals are processed allows the 3rd party information holder to demand costs of representation, even if they are not opposing the order and even for them to challenge whether the causal post is defamatory at all, without then accepting liability for the costs, if the court decides that it is.

    It is the costs of a Pharmacal, which could be as much as £10,000 or more, that prevents most defendants settling (as in McAlpine) for a simple apology, because £10,000 is not a sum that most can afford to throw away. This means that unless the costs of Pharmacals are reduced, then most internet defamations/harassments will end up with a single action against a number of defendants, or multiple actions (dozens or even hundreds) against single defendants as and when they are identified by each Pharmacal & depending on what they said. This could clog up the libel courts for months or years & I believe was one of the reasons the judiciary decided against the claimant/victim, rather than the defendants/harrassers in my case.

    The new defamation bill has actually made it easier for people to harass others on the internet. The claimants now have to prove that the information was damaging, which could be extremely difficult, if the damage would not show for years. It will take far more high-profile cases like McAlpine, to change the way the courts handle internet defamation. If they do not grasp the nettle right now, then internet defamation will be the glue that finally clogs the wheels of justice forever.

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