Is the property industry at risk of defamation?

Is the property industry at risk of defamation?

14:55 PM, 12th December 2011, About 10 years ago 18

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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

by Ian Ringrose

13:58 PM, 13th December 2011, About 10 years ago

This is a complex and unclear area if the law, maybe in 20 years’ time the law will have caught up with real-life!

It used to be a defence, at least in the USA, if you could prove that there was no practically way to control what people posted. (As soon as you put control measure in place, you can be hold responsible for not using them – some cases with uTube have also made the case law more complex)

It all relates to the laws on “common carrier” and when/if they apply to different internet systems….
For a US case see http://news.bbc.co.uk/1/hi/business/6167930.stm

I think there have not been many simple UK cases, so the UK law is even more unclear.

For example, StackExchange has no controls on who can post, have many tens of thousands of posts a day – they will only look at a post if someone complains, but they are based in the US. (Maybe the UK is just not a sensible location to have some types of websites)

Another example, Amazon allows negative reviews on its UK website without getting issues with publisher going after it – however this may be partly due to the fact that the publishes don’t wish to be delisted by Amazon.

I think you have to choose between “having no control” and “being liable for all postings” – but the law is still a very complex mess that will take many years (and expensive cases) to sort out. Once you have chosen to go down the “control” side, I don’t think you will be able to claim it is not practical to control postings.

At the end of the day you have to decide if you can afford the legal cost of upholding “freedom of speech”.

However if you don’t allow disputed negative reviews, why should anyone trust any of the reviews on your site?

by Mark Alexander

14:20 PM, 13th December 2011, About 10 years ago

Hi Ian

I think the law is clear and has been since the 2001 case of Godfrey vs Demon internet when the judge Mr Justice Moreland threw out Demon’s defence of “innocent distribution”.

Just because many people haven't litigated yet does not mean they wont. How many people didn't used to sue for personal injury or medical negligence until lawyers made it easy for them to do so? That was the point of my article.

Property118.com is not a Review site. We do, however, allow businesses to publish Testimonials from their clients onto their business profiles. These testimonials are credible and trustworthy in that they are date and time stamped and because the people leaving the testimonials generally tend to leave their email addresses so that they can be verified. We also have a variety of checks and balances in place to prevent businesses from leaving fake testimonials for themselves. There is nothing to stop anybody hitting the "Leave A Testimonial" button and leaving a negative comment. Businesses can find this useful as it gives them an opportunity to put a problem right which they may not have otherwise known had existed. The likelihood is they will choose not to publish such comments as Testimonials on their profile as it's best not to wash dirty linen in public. They are, however, incentivised to resolve grievances on the basis that they are then more likely to get a positive comment from their client and want to display it as a testimonial. Remember, reviews are very different from testimonials. Great question by the way and thank you for raising it.

by Ian Ringrose

14:50 PM, 13th December 2011, About 10 years ago

I think the key point in Godfrey v Demon is:

“Godfrey contacted Demon Internet, one of the major Internet Service Providers in Great Britain to inform them of the forged message and ask that it be deleted from Demon Internet's Usenet news server. Demon Internet DECLINED to remove the message”

“as from the 17th January 1997 they knew of the defamatory content of the posting, they cannot avail themselves of the protection provided by Section 1 of the Defamation Act 1996 and their defence under Section 1 is in law hopeless”

And:

Following Godfrey v Demon, ISPs began to remove defamatory statements as soon as they received a complaint about them. Media lawyers have described the case's resultant restriction on freedom of expression as "disproportionate" and suggested that it may not survive a challenge under the Human Rights Act.

IF Demon had removed the message WHEN ASKED, the outcome of the case may have been very different, however we won’t know until another test case is brought. (I don’t recall from the time anyone claiming that Demon was liable for a post if no one asked them to remove it.)

However it is very sensible for you to decide to take the safe option, as defending such a case would be very costly and it is not clear what the outcome would be.

(If I was thinking of starting the next facebook, the first step may be moveing to the USA, so I can get a more reasonable legal system to work within)

by Mark Alexander

15:11 PM, 13th December 2011, About 10 years ago

Very interesting Ian, back to researching it is then. There must surely have been a test case whereby the cause of damage from a defamatory post was only discovered after the damage had occurred. I may be wrong because i have not found a case yet. Perhaps I should invite some defamation lawyers to comment or some law stuidents who will not mind doing the digging for me.

If anybody knows a defamation law specialist or a law student who is up for a holiday challenge please point them to this thread.

by

11:04 AM, 4th January 2012, About 10 years ago

Coming off ‘the law’ and back on to the mundane nub of the issue…. My potted fall and fall …  I basically had to let a rented house go a while back, because  mysteriously it was empty for 2 years. This then suddenly became the case for another and another. I have basically ended up eventually loosing half my business, including a jointly owned house that was to pay for my daughter’s university course (she has not gone as result) and arguably through this have also in effect lost my family. I did not know what was happening at the time but on quizzing a current ‘last minute’ tenancy pull out, which has happened a few times, I became enlightened and went on the web …
A while back, a disgruntled student who had pulled a door off his hinges and tried to disguise the fact, perhaps  becoming embarrassed as the deposit issue became seen / effected all in that house, posted a ridiculous comment on a web site that you had to have a an email address from the particular university  to access, so in effect it was there for all students to see but not for to comment on or even contact the site owner.  A year later a student who took 2 months to get me the keys and bill payment proofs back at end of tenancy, and with it delaying the deposit return became the ‘bad egg’ of her fellow tenants. They found the original entry and  jumped on the band wagon and let off just as expressive steam.  Even though the web site was obscure, all someone had to do was to google the house address or a name as a last minute check for the stuff to come gushing back. To cut a long story short, it was clear to me all events leading to my demise were linked in to these comments in perect sync.
I am bitter!  But I try to put this down to no bad doing. By that I mean in essence, students are still children with wild imaginations seeing any action on them by a landlord as some dark ogre like force at work. Likewise, their over protective and often over assertive parents get caught up in the defence of their ‘innocent’ offspring and in the game on a slightly shallower level – the money!
This last paragraph above I say in partial understanding /forgiveness of the behaviour. But something is clearly wrong in a world where decisions are effected by affected people. Almost a case of the old medieval world,  split up in to tiny clans influenced by gang leaders or ‘the mob’ i.e. those who should not have influence. Ironically this ‘tiny mentality’ effect comes from the reverse – the big world wide web. Maybe we have reached critical mass and are imploding!

by Mark Alexander

12:07 PM, 4th January 2012, About 10 years ago

Gerald, that's a really sad story. Thank you for sharing it though, it serves as a warning to us all. Did you ever investigate whether you have any potential recourse to the University for your losses resulting from this defamation?

by

16:21 PM, 1st February 2012, About 9 years ago

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.

by Mark Alexander

9:15 AM, 6th April 2012, About 9 years ago

Full Contact Law Launches Internet Defamation Protection Service >>> http://bit.ly/Icl6SJ


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