Libel & Emails
Juliana M. Snelling · July 1st, 2008
Juliana Snelling answers questions about the law of libel in relation to emails for the Royal Gazette.
Do the laws of libel relate to emails?
Yes certainly. The law of libel (the written aspect of defamation) applies to all defamatory statements about another person that have been published. Defamatory publications include website postings as well as emails.
In the 2001 English case of Takenaka (UK) Ltd. v Corfe & Frankl, the defendant was ordered to pay damages of £26,000 to his former employers in the first case in the UK on committing libel by anonymous email. He also faced paying legal costs estimated at up to £100,000.
The High Court in London found that Mr. Frankl, a former employee of construction company Takenaka (UK) Ltd, sent three emails to his former bosses from a Hotmail account using the false name of Christina Realtor. The emails defamed the company referring to its hypocrisy, double standards and callousness. They also defamed its managing director alleging that he had had an affair and was refusing to pay child support for an illegitimate son. The Court ordered Mr. Frankl to pay the Company damages of £1,000 and damages of £25,000 for the "much graver" libels made against his former boss. Although Mr. Frankl denied the charges against him, the Court found that he had authored the libels after Takenaka obtained court orders to force Microsoft and ISP CompuServe to cooperate in tracing the defamatory emails to a laptop used by him at his subsequent place of work.
Has anyone been sued in Bermuda for libelous emails or have there been out of court settlements?
I am not aware of any published judgments in Bermuda concerning libelous email. However I am certainly aware of several out of Court settlements involving libelous emails which, fortunately for the defendants in those cases, never made it to Court!
One Bermuda case involved Professional Man A in one firm emailing Professional Man B in another firm making defamatory statements about B's secretary (saying he should "fire the whore/choke, splutter, spit"). B was silly enough to send the email to his printer and the defamatory email was discovered.
Another case that settled involved a businessman posting defamatory statements about a competitor on a Yahoo! Messenger Board.
Yet another settled case involved a news reporter sending defamatory emails about the quality of sports reporting on the part of staff memebers of a broadcasting station.
I cannot disclose the details beyond these for obvious reasons of confidentiality. I have no doubt that there are other cases out there of this nature.
What is the maximum penalty for libel?
Libel is of two types - criminal and civil. For criminal libel, our Criminal Code Act 1907 stipulates a punishment of imprisonment for up to 2 years if the offender knew that what he was publishing was false.
More commonly, plaintiffs pursue their civil remedy for libel and, if successful, they are awarded damages. There is no maximum amount of damages payable - the damages are "at large". The amount depends on several factors such as how egregious was the conduct of the Plaintiff (was it published maliciously?), how awful the defamatory statements were (being called a Nazi is worse than being called a thief), the extent of publications (website publication is far worse than sending a letter to someone), and the offer or refusal on the part of the defendant to retract the statement or make an apology.
It is interesting that since the Elton John libel case (involving the published allegation that the singer had an eating disorder and would engage in a bizarre habit of spitting his food back into his napkins), the Courts have looked at awards made in personal injury cases when gauging the appropriate amount to award in libel cases. Thus in a serious libel case, the Courts might look at what damages a quadriplegic received in a personal injury case and ask whether the defamed plaintiff should get more or less than that - in order to lend perspective to the award.
Are people liable for simply forwarding such libelous emails or are only the original authors libel?
Yes, people can indeed be held liable for forwarding defamatory emails since the law regards each "forward" as a fresh publication of the original libel. A common law defence of "innocent dissemination" is available if the defendant can show that he had no knowledge of the contents of what he was forwarding, i.e., he did not know that the document contained a libel, but he will have the burden of proving this.
"Not removing" a publication can also amount to publication of a libel. In 1999 the English Courts for the first time faced a defamation case involving the Internet, Godfrey v Demon Internet Ltd. In that case the defendants, an Internet service provider, received and stored on their news server an obscene article that was defamatory about the plaintiff. The article had been posted by an unknown person using another service provider. The plaintiff informed the defendants that the article was defamatory and asked them to remove it from their news server. The defendants refused to do so and the article remained available on the server for some 10 days until its automatic expiry. The Court held that since the defendants' business was to transmit postings received and stored by them via the Internet to news subscribers, they were publishers of the defamatory statements and were therefore guilty of libel. The Court reasoned that they were no different from a bookseller who sold a book defamatory about someone.
If people are sending such libelous emails on company machines are the companies liable?
Companies run the risk of being held vicariously liable for libelous emails sent by their employees in the course of their employment. The arguments in these cases will turn on whether the employee was acting in the course of his or her employment at the time that he sent the email (company liable) or whether he was off "on a frolic of his own" sending emails for personal use (company not liable). If the emails were sent on company equipment from a company email address during working hours, the company may have difficulty making the "personal use" argument. In certain circumstances, companies are entitled to go after the employee for an indemnity in the event that the Company has had to fork out for an employee's tortious actions.
If companies can be held liable what should they do to avert problems?
Ensuring that excellent Internet policies are in place that are brought to your staff's attention. If you don't have an email policy, get one. Many excellent ones are available on the Internet. Enforce the policy in order to make it effective.
Make clear rules that specifically prohibit the sending and receipt of offensive non-work related material; in particular obscene, discriminatory, defamatory material and joke/junk mail. Decide the extent to which employees can use the Internet and email for personal purposes. Set down the parameters clearly and specify the consequences of misuse/abuse of the system, including disciplinary action and summary dismissal.
Alert staff to the existence of the policy and to the repercussions of breaching the policy, including the forwarding of libelous emails. Make them aware that their communications may be intercepted.
Inform staff continually of the policies if they change or are updated.
Limit your liability for an employee's actions by following these guidelines.
How does Bermuda law on libel compare with other jurisdictions?
As an English common law jurisdiction, Bermuda's libel laws are based on English libel laws but we have not kept up to date with them, unfortunately. If we are serious about touting ourselves as an "e-commerce" jurisdiction suitably poised to compete in the global economy, we should be getting into step by looking to enact a suitable variant of the English Defamation Act 1996.
In terms of remedies, our damages awards are low following the conservative English tradition which sits in stark contrast to the infamous jury awards in the United States for defamation.
When writing emails what should people bear in mind to avoid disciplinary/legal issues?
Remember the Norton Rose case. Over a million people are thought to have seen an email that originated when a female sent a sex joke to her boyfriend who was a newly qualified lawyer at this London law firm. In a reply email in the chain which followed, she complimented him on an aspect of the oral sex that they had engaged in the previous evening. Feeling quite proud of himself, he forwarded the email on to 6 friends in the office adding his own comment, "now THAT's a nice compliment from a lass, isn't it?" One of the friends forwarded it to 12 others with the comment, "Beggars belief. I feel honour bound to circulate this." From there, the email message gained momentum being forwarded to countless computers throughout the UK and beyond. The employees of Norton Rose who had forwarded the email were all severely disciplined for their actions.
The moral of the story? Don't send any email that you don't want the world to read. Think hard before you press Send.