Page 104 - Law and the Media

New Media
defence of ‘innocent dissemination’ under Section 1 of the Defamation Act 1996.
However, because Godfrey had told Demon about the defamatory content, Demon was
unable to argue that it was ignorant of the alleged defamation, a necessary element of the
defence. The case settled out of court in March 2000 with Demon paying Godfrey
damages and costs.

Email
Sending an email to any person other than the subject of the defamatory statement will
amount to publication to a third party under English law. Great care must be taken when
sending and particularly forwarding emails which contain statements that may be
defamatory. An email sent in the belief that it will only reach the recipient can easily be
very widely communicated, as happened in December 2000 when an email sent from
Claire Swires to her boyfriend was forwarded to hundreds of people because of its sexual
content. Even if an email is only sent to one recipient, it may be publication to a third
party if it is sent from a workplace email account where there is a policy of routine
monitoring of emails.

In West Provident Association v Norwich Union Life Assurance (1997), West Provident sued
in respect of rumours published in emails sent on Norwich Union’s intranet system. The
rumours were that West Provident was insolvent and was being investigated by the DTI.
West Provident obtained an order for the preservation and delivery of copies of the emails.
Norwich Union settled the case out of court by paying West Provident costs and
damages.

The court has demonstrated a willingness to order companies to co-operate in identifying
the sender of anonymous defamatory emails. In 2000, David Frankl was ordered to pay
damages and costs in respect of three emails sent under a false name to his former
employer, which contained defamatory statements about the company’s managing director.
Frankl’s former employer obtained court orders forcing Microsoft and Compuserve to
co-operate in tracing the defamatory emails to a laptop used by Frankl (Takenaka (UK) Ltd
v Frankl (2000)).

Bulletin boards
Individuals subscribe to a bulletin board to contribute comments on a particular subject.
Bulletin boards are often used in business and academic communities. Every subscriber
receives a copy of each posting, thereby satisfying the requirement of publication to a third
party. Great care must be exercised when posting on bulletin boards. In an Australian case
in 1994, damages for defamation were awarded against a man who posted a message on a
science anthropology news bulletin board. The board had a global academic readership. The
message alleged that an anthropologist had been dismissed from a university position
because of sexual misconduct and lack of professional competence. The court was satisfied
that the message had caused serious harm to the anthropologist’s personal and professional
reputation and had made it more difficult for him to obtain employment (Rindos v Hardwick
(1994)).
67