Is the property industry at risk of defamation?

by Mark Alexander

14:55 PM, 12th December 2011
About 8 years ago

Is the property industry at risk of defamation?

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Is the property industry at risk of defamation?

Landlord’s Log, the Personal Blog Of Mark Alexander, the Founder of Property118


Try associating the words ROGUE or UNSCRUPULOUS to a trade or profession which is not related in some way to property.

Whether we like it or not, we now live in an age of digital communication and “no win no fee” lawyers. We hear adverts soliciting claims for personal accident and medical negligence on a daily basis but what’s the next big market for the ‘ambulance chasers’?

Could it be internet defamation?

If it is, then the property sector must certainly be full of rich pickings.

Defamation has never been easy to prove when it comes to the spoken word but libel comments (i.e. those in writing) …… well that’s another story altogether.

Back in 2001 the first case of internet defamation was tested in the case of Laurence Godfrey vs Demon internet. The case took four years to come to a head and resulted in a landmark ruling from Mr Justice Moreland who threw out Demon’s defence of “innocent distribution”.

So where does that leave internet forums and review websites?

Where the person making the defamatory comment can be identified at least one channel of litigation is apparent. However, it is very easy these days to get a free email account without giving away your identity and then to create anonymous accounts on forums and review sites and that’s why the Godfrey vs Demon internet case is so relevent. Just because some people are wise enough to ignore comments from posters with names like “Kangorillapig1882” doesn’t make the owner of the website immune to litigation. In law, it is the forum owners who have allowed defamatory comments to be published.

For some time now this has left me wondering what the future is for the popular review based websites and internet forums.

The Demon Internet case is now 10 years old so I did a bit more research and found a UK case where damages of £119,000 were awarded to a Mr John Finn, described as having a “long and distinguished career in the housing industry over a 35-year period”. His business “Gentoo” was engaged in the provision of rented social housing and the regeneration of rundown communities in the Sunderland area. Mr Finn was said to have endured a “malicious and relentless” campaign of libel and harassment.

As you might expect, there were much bigger awards to be found in America. In November 2006, Broward County Circuit Court awarded Sue Scheff fromFlorida $11.3 million in damages. A jury found a Louisiana woman had posted caustic messages against Scheff and her company, claiming she was a “con artist” and “fraud”. The jury found the charges were completely false, so the Louisiana woman had no defence.

My Nan always used to tell me, “if you haven’t got anything nice to say then say nothing”. Wise words in light of the above!

I have to admit, I am a user of many review websites and forums myself. Am I really interested in the negative comments though? Well I might be if I’m checking out a specific product or service provider. However, if I’m shopping around I want to know which businesses my peers are using.

I regularly visit property forums and come across the question “can anybody here recommend a good …… in ???”

What I don’t see too often is “I live in ??? and I want to avoid all the dodgy …… who should I steer clear of?”

Most people in the property sector have a huge network of preferred contacts but do we all know the trusted suppliers of trade and professional services to our peers? I know the answer to that question is no because I have stood at the front of the room at many property networks and asked the attendees to name any three of the preferred contacts for any three of their peers in the room. It is very rare indeed for anybody to be able to do it.

What motivates you to comment online?

Are you more inclined to review with a negative experience rather than offer praise to a business who has done an excellent job?

To what extent are review sites there to allow people to vent spleen rather than be a constructive way to assess alternative suppliers?

Have you previously considered the implications of libel and defamation when using forums and review sites?

Did you know the website or forum owners are also liable for what you write and does this make you consider your comments differently?

How do you see the future of review sites to ensure they do not become too risky for businesses to use for advertising their services?

 


Mark Alexander
Mark and his family have been investing in property since 1989, initially in the Norwich area but more recently across the length and breadth of England. Mark created Property118.com as a social network for landlords with a vision of becoming the UK’s leading online directory for businesses providing services to the private rented sector.
Mark’s experiences and strategies as a landlord are shared here



Comments

15:45 PM, 12th December 2011
About 8 years ago

** MODERATED **

I use http://bit.ly/fNGakt to avoid being put in the position of being a publisher.

Mark Alexander

16:13 PM, 12th December 2011
About 8 years ago

Nick, the potential for claim is not reduced by use of your disclaimer in my opinion as it would require a complainant to be aware of the defamation at the time of publication. The defamed party would not necessarily be aware of the cause of any damage until after such damage had been caused.

Tessa Shepperson

16:22 PM, 12th December 2011
About 8 years ago

Like Nick, I have a statement on my blog (its a comments policy) and there is a link to it directly above the comments section on posts - but you can see it here http://www.landlordlawblog.co.uk/comments-policy/.

All comments are moderated and I do not allow all comments through. Occasionally I will take something out of the comment if I am a bit worried about it.

I have only once been threatened with libel and it was in connection with a landlord service (I am not going to say which one).

My post was a bit cagey but I had allowed a comment which was rather negative about the legality of what they were doing.

I got a cross email threatening all sorts of nasty things if I allowed it to stay, so I just took down the whole post. It was quite old and I took the view that the subject matter was not important enough for me to make an issue of it.

But yes, I am very aware of the potential problems and try to guard against them. As a solicitor I also have to be careful about giving advice - which is one reason I have the Blog Clinic, which contains a disclaimer they have to click through.

YOU need to be careful too Mark, on Property 118!

18:47 PM, 12th December 2011
About 8 years ago

Very wise Tessa, I always make sure that if I am citing a fact, I have the documentation at hand, if I am citing an opinion, I state that it is an opinion.

I have covered a number of stories for blogs and traditional press and I always make sure that I have exact quotes and confirmation via email by all parties for my own peace of mind.

Once I wrote a piece about government legislation. I was slated as having incorrect facts on a housing and government website. In my business as a writer this could have been disastrous.

Thankfully I had a leaked document and the governments own stats direct from their department at hand and put them up for anyone to download. Needless to say I was left alone after that. But yes, you have to be certain before you publish anything.

Mark Alexander

20:35 PM, 12th December 2011
About 8 years ago

Thanks for sharing this Tessa. Clearly great minds think alike as your comments policy mirrors what we do in practice. That said, I have to admit that you are a step ahead of us in terms of documenting your comment approval and moderation strategy. This is an excellent example of sharing best practice and I will make sure we follow your lead.

0:34 AM, 13th December 2011
About 8 years ago

I think in the blogosphere which is no lmger anonymous you need to ensure that your contributers do not compromise your web site and leave you as the hoster possibly liable to prosecution.
This obviously causes you more work; but you have no choice , you have to protect your investment and not allow a few leary psots to possibly make the site liable for prosecution.
Therefore you have no choice but to effectively censor.
I see no reason just because someone is not a journalist that they may make unfounded or malicious comments as they think the y are immune from prosecution.
Informed comment yes; defamation no.
Mark you are effectively the gatekeeper to all comment and we need you to do an effective job as we do not wish your facility to be brought down by iresponsible parties.
Keep up the good work.

12:25 PM, 13th December 2011
About 8 years ago

Mark, thanks for sending this through, We fully appreciate the way some review sites work, therefore when we built "agent-tracker" only customers with a passcode can leave a review to ensure all reviews are verified also the agent has a "right to reply" section. Our objective is to help change the public perception of the estate agency profession by highlighting the good news . Dont get me wrong we do have negatives reviews, and that goes to show you cant please all the people all the time. Importantly, (maybe)? only agents who are happy to be transparent have signed up.

Ian Ringrose

13:13 PM, 13th December 2011
About 8 years ago

This problem has been going on for a let longer than the web; it was a problem with newsnet (http://en.wikipedia.org/wiki/Usenet). (So the IT community has faced this for over 30 years - I have been using on line systems for over 20 years!)

In generally felt in the IT community, that by actively moderating before publishing a comment you are opening yourself up to lots of problems – you have become responsible for the comment by the process of approving it.

It is felt that provided you respond to any “take down” requests in the correct way, you can no more be liable for a post from a user (that you did not have the option of blocking before it was published), then a telephone company is liable for what we say to each other on the phone.

Newsnet was nice in that it is impossible for a single system admin to delete any post that had been made, therefor they could not be legally required to do so – the unhappy company had to get legal orders against 10,000 of system admins spread round the world to get a single post removed. (Thinking in the IT community tend to take the lead from the USA where freedom of speak is the most important thing regardless so any other harm that is done)

So by putting systems and controls in place to protect yourself you may infect be opening yourself up to lots more problems.
However the law is not clear, it is also different in different parts of the world, but you at least the USA consider it’s law to cover the complete world, so you have to keep to UK and USA law, or never set foot in the USA.

Mark Alexander

13:19 PM, 13th December 2011
About 8 years ago

Hi Ian

Your opinion conflicts with my research and the awards made by Courts in both the UK and the USA, please can you point me to a source article upon which your opinion is based?

Samii Boyd

13:39 PM, 13th December 2011
About 8 years ago

I think the real question here is: What would you do if you saw a group of bullies picking on someone?. . .

We all have a duty of care to make sure what is posted on our sites is correct & ALL sites should be answerable to what they post.

And as administrators to these sites we have a duty of care to those who use them, which must extend to removing anything that could be libellous in the face of a dispute from another party.
Quite frankly if one person disputes that to be the issue a post should be removed.
But no two cases are and never will be the same anyway.

Just last night at LandlordReferencing we received this post; http://bit.ly/sFVZ7i
~ deeming our information to be inaccurate.
Once the tenant was bought into the office there WERE issues with regards to non payment of rent, etc...

We could have simply deleted this post and pretended this had never happened but
our motto is TRANSPARENCY - and everyone has a right to have their say.

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