Libel Question

Factual Questions
1

(based on a true story, names changed to protect the guilty)

Suppose we have a man, lets call him Big Brother for the sake of argument, who is the host of an internet forum, The Big Brother Message Board.

Suppose we have another individual, lets call him Winston Smith who hates big brother. Smith publishes a very nasty and untrue attack Big Brother, alleging BB is guilty of serious criminal actions, and posts it to BB’s own forum.

BB’s attention is drawn to the thread almost immediately. As the host of the site, he is able to delete the thread, but instead declares his intention to “preserve” it, makes a point of drawing attention to the attack, and declares his intention to sue Winston Smith.

What would Big Brother’s legal position here? IANAL, but I have done a little legal studies (UK law) and it seems to me that BB is on dodgy legal ground.

I know that - under UK law, at least - a self-published libel is not actionable. If you write a letter to a man, and he publishes that letter to the public, he cannot then take action for any defamatory statements it contains. ISTM that posting to a forum is a similar situation. Big Brother, as host of the forum, has published the post himself, even though it was done automatically without BB’s direct approval. And he could have minimised the damage by deleting the thread, but he chose not to do so, contributing to any damage the libel may cause.

The forum is based in America, I believe Winston Smith is posting from another country. Winston Smith’s real name and contact details are well known to Big Brother.

Any comments, lawyers?

2

BB may have a case for damages as he could only remove the post after he knew it was there. BB, as moderator, has a responsibility to monitor his borads and has the responsibility to remove the post (mitigate the damage) as he had the power to do so. Therefore, a court would probably allow BB a “window of opportunity” to discover and remove the post. What BB’d have to do is offer proof that the libelous posting did inflict harm (i.e., how many people visited the site and/or read the message within that window; was the posting exported to other sites that he don’t have control over, etc.).

3

I agree with you on the damages mitigation point, peter. If BB fails to take down the message once he knows about it, it’d be hard for him to claim any damages for loss of reputation after that point. But I think your first point (that it is a self published libel) is dubious. BB just provides a place for people to publish messages. BB doesn’t actually take each message and put it up on the board, he just leaves a server running that others can use. But I can see how you might argue it the other way.

4

Isn’t Winston Smith an actual poster here?

5

Yes. So? This thread obviously doesn’t reference him.

6

FYI Winston Smith is the name of the protagonist in Orwell’s 1984 , which is also the source for “Big Brother”. A read of this book can do much to inform one on matters political, and the book and much of its vocabulary has entered western culture.
Whether or not the names chosen for this tread are apt I will leave to you.