Amongst lawyers the internet has developed a reputation as "the Wild West" due to the difficulty of legislating for a medium which provides the ability for people to post information which is then immediately accessible anywhere in the world.

One area where this is brought sharply into focus is the area of libel (or defamation) where comments made by one individual can be read by millions of people worldwide, most of whom would have no idea of whether there is any basis whatsoever for the comments. More often than not these comments are made maliciously and the poster is unlikely to identify himself readily, hiding behind a pseudonym. For Higher Education establishments whose reputation is vital in securing new students and who also have a duty to look after their staff (and therefore their staff’s reputation also) this can prove particularly difficult. Social networking sites such as Facebook have become populated with groups set up to allow comment about particular institutions or departments and many are set up solely for the purpose of expressing dissatisfaction.

However the idea that such comments can be posted without fear of reprisal, or even without revealing one’s identity, is a myth and providing a party has the resources there are options available to make sure that where appropriate such comments can be readily removed and in more serious cases the individuals identified and held liable to pay compensation.

At a basic level a comment is defamatory about an individual (or body such as a University) if the statement is published to a third party, that party can be identified from the statement and it causes them to be "lowered in the eyes of right-thinking members of society generally". A number of defences are available for any party involved in the publication, the most obvious of which being that the statement was true.

In the case of parties who provide access to the internet and the opportunity for people to post such comments (such as internet service providers ("ISPs"), Facebook and blogger) they will be liable as publishers of the information. The law does however provide them with a defence under section 1 of the Defamation Act where they take "reasonable care" and have no reason to believe that their acts are causing or contributing to the defamatory nature of the statement. In practice this means that sites which do not exercise routine editorial control will have a defence until they are made aware of any potentially defamatory statements. Once they are they will be faced with a stark choice: remove the material or face being held potentially liable for the statement. Confronted with such a choice most responsible sites will immediately remove the material. Often therefore a carefully worded letter is sufficient to achieve the removal of the defamatory material.

In addition whilst sites will not readily disclose the identity of the poster or information (as such a disclosure is likely to lead to Data Protection issues) court processes are available to force disclosure of this information. Such orders are known as Norwich Pharmacal orders and are available where a defamatory statement is posted and the website or ISP has information which may lead to the identity of the poster (either registrations details, an e-mail address or even the IP address of the computer from which the information was posted).

For those out there posting comments the Wild West may not be as unregulated as they thought. For those seeking to protect the reputation of the institution and the staff the key is to monitor what is being said and where the comments cross the boundaries to take swift action.

Lee Fisher can be contacted by telephone on 029 2038 5498 or by email.