Defamation by social media: Who's liable?

Can service providers be held liable for what their users post, tweet or upload, including what others may deem to be offensive communications?

The liability picture varies dramatically from country to country, thanks in part to differing defamation laws. In Australia, for example, a well-known television personality and writer, Marieke Hardy, last year accused—via Twitter—a man named Joshua Meggitt of having authored a hate blog against her. "I name and shame my 'anonymous' Internet bully. Liberating business! Join me," Hardy wrote to her 60,000 Twitter followers.

Unfortunately for Hardy, she incorrectly identified her anonymous bully, leading Meggitt to file a defamation suit against her, which she settled for a reported $15,000 Australian ($15,500 U.S.). Meggitt has also

for relaying Hardy's message and allowing others to retweet it, as well as for relaying other messages that incorrectly singled him out for abuse.

Not every country's laws, however, would facilitate those types of suits. In the U.S., for example, the liability picture is relatively clear: Social networks aren't culpable for the content of their users' posts, although most sites have clear terms of service in place that specify which types of content, such as hate speech, are prohibited. Furthermore, by using the site, people agree to abide by the terms of service and can see their content deleted or accounts suspended if they violate those terms.

But as the Australia example highlights, the legal protections in place in the United States don't always exist in other countries, or at least not for social networks. Interestingly, Australia's defamation laws do allow Internet service providers (ISPs) and Internet content hosts (ICHs) to be sued based on any material they publish about a third party.

But while Australia's

exempts ISPs and ICHs from defamation, "Twitter does not fall within the strict definition of an ICH, which is 'a person who hosts Internet content in Australia, or who proposes to host Internet content in Australia,'" said Glasgow-based attorney Claire McCracken, who works at law firm Tods Murray,

.

Twitter could likewise be held accountable for its users' posts under the UK's notoriously strict defamation laws, which allow anyone with a defamation claim to sue authors, editors, publishers and secondary publishers.

"The crucial point for the firm and others like it in the UK is that there is no way to tell what its liability would be because the law in this area has not yet been tested," McCracken said. "It could be read as absolving the company. But, dangerously for Twitter, it could just as easily be read as meaning that it can be sued if users behave unlawfully."

Critics have alleged that the UK libel laws stifle free speech and facilitate a growth in "libel tourism" by people and businesses that use the English court system to punish their critics. On a related note, earlier this year, the UK government announced plans to

, which could lead to liability exemptions for social networks.

Other countries, meanwhile, have been enforcing their defamation laws in ways that hold service providers directly accountable for users' posts. Arguably, the most high-profile such case involves three Google executives, who in February 2010 were

by an Italian judge after students in 2006 uploaded to YouTube a self-filmed video of their bullying a boy with autism. The Google executives, none of whom are residents of Italy, have each received a six-month, suspended sentence. All have appealed the decision.

Could the Italy decision against Google stand and perhaps become a European precedent for defamation cases? Google Global Privacy Counsel Peter Fleischer—one of the three executives involved—said via e-mail that "the verdict is wrong" and that it furthermore ignored a wealth of relevant European legal precedent.

"For example, the European Union's Electronic Commerce Directive, enacted in 2000, sets a clear legal framework for establishing liability for unlawful content on the Internet," he said. "It prevents liability for entities acting as intermediaries, drawing a clear line between those who develop and control content for the Internet and those who, in their capacity as technological intermediaries, provide the means and the tools to make this content publicly available."

Such protections, he said, "promote free expression" and enable social networking businesses to stay in business rather than face lawsuits by users who say social networks have facilitated abuse against them. But until countries update their libel laws, social networks, as well as nontraditional service providers and content hosts that operate there, remain—legally speaking—on the liability hook.