2010: On A Whim And A Prayer

Nick Carraway, F. Scott Fitzgerald’s erstwhile narrative conscience in ‘The Great Gatsby’, remarks that he is “the most honest man”. In the context of that novel, that remarkable study of intimate personal feelings and unfathomably large, continental ideologies, he might well be right. J. D. Salinger, however, can surely lay claim to the most truthful remark in modern literature. Again uttered through the author’s choric voice, Holden Caulfield, in ‘The Catcher In The Rye’, tells us to “never tell anybody anything. If you do you only start missing everyone.”

This is significant, I feel, as we fast approach another new year. The world is smaller than it has ever been, split into manageable pieces by modern technology and communications, allowing us near-constant links to every corner of the globe from any far-flung destination. We live in exciting times, a social media revolution that means we are never more than one click, one touch-screen, away from a multitude of communication forms. Of-course, to say that we communicate does not mean the same as saying we connect.

It is interesting how relevant Salinger’s viewpoint is in the final moments of 2010 and the embryonic stages of 2011. We can now “tell anybody anything” across a number of platforms, from Facebook to Twitter, Skype to Foursquare, Blackberry Messenger to Whatsapp. As information disseminates at an increasingly rapid pace, we find ourselves opining, narrating, articulating and displaying our lives to all and sundry, even if that is not the sole intention of our various publications. Go back through your Facebook posts from the past twelve months. You have, whether you wanted to or not, kept a diary. Despite this, it may be that you are able to enter into a dialogue with our modernity without becoming embroiled in the psychosomatic elements of it. I have never been quite so stoic. No. For me, Salinger is correct. The more I tell people, the more I miss them. Yet still I tell and still I miss.

This poses a problem. Does one shut up shop in 2011 and retreat to an earlier, perhaps a more innocent and simpler time? Do we compartmentalise our conscious and subconscious communiqués into the general and random on the one hand, and the specific on the other – Facebook status updates and 147-character Tweets that say very little to many or so much to someone? I’m minded to adopt the stance of Alfieri from Miller’s ‘A View From The Bridge’ and settle for half. Will I like that better?

Would I do it differently if offered the chance? Ultimately that is the wrong question. Could I do it differently? That would be more appropriate. And no, I could not. I like that this year I have taken chances, run risks, stared fate in the face. My decisions and, indeed, indecisions may not have all worked out perfectly. There is, however, in the midst of the paranoia of another year passed and potentially wasted, comfort in our certain uncertains: that everything changes and nothing changes. Nick Hornby had it right in ‘Fever Pitch’: “If you lose the FA Cup Final in May, there’s always the third round to look forward to in January. And what’s wrong with that? It’s sort of comforting when you think about it.”

So how was 2010 for you? Was it everything you wished for? Did the feeling you had this time last year turn in to an impressive premonition of what was to come, or were your hopes and fears misguided and unfounded, arising as they did out of the inevitable emotional firestorm of alcohol and an acute awareness of the rapid passing of time? I’ll look back on 2010 as a year of utter chaos, of dizzying highs and sadly predictable lows. In the space of twelve bizarre months, I’ve started a job of at times oppressing intensity, travelled to the southern United States on what can only be described as a whim and a prayer, watched my sister get married, observed a political revolution in the UK and searched in earnest for an apartment to call my own. The above list, of-course, is hardly indicative of the entirety of a twelve months. You get the general idea. I could delve further here, could provide you with unique personal insights. Without wanting to sound either esoteric or deliberately annoying, what I can tell you is that while the world around us has changed immeasurably in the past twelve months, I remain as I ever was and doubtless ever will be. There is something both monumentally frightening and consoling about that in equal measure.

If Salinger is right, if it is true that opening up to people you care about only results in missing them terribly, is it best to remain closed off and private, despite the near impossibility of this in our world of omnipresent communications? ‘The Catcher In The Rye’ has often reared its head this year, both in terms of its last-line conundrum, but also in its overriding motif: that there are some of us who are lost in the world, not entirely certain of which way we are going or which way we have come, and at times merely wanting, for want of a better thing to do, to stand in a field and catch people coming out of the rye and heading for a fall.

John Lennon, in probably his finest lyric, remarked that “life is what happens to you while you’re busy making other plans”. So, in all honesty, I have not been able to be the catcher in the rye for all that long. Moreover, and perhaps here is the only way that the idea of Holden Caulfield being a catcher in the rye matches up with his epitaph of missing everyone, it seems that to catch people in the way Salinger describes it, the people in question have to want to be caught.

Perhaps that is the greatest lesson of 2010. You can tell people everything in the hope of absolution, of common ground, of love, life and the pursuit of happiness. Such displays of affection, honesty and attempts at the substance of what is hoped for will not always result in mutual understanding, warmth or candour. Neither will they stop you missing those who you communicate such messages to. And they certainly do not turn us into catchers in the rye.

Yet the alternative is not in my philosophy, and so I beat on, boat against an at times bewildering current, continually laying myself open to the dual onslaughts of sentiment and posterity, honesty and nostalgia. After all, you have to try. If you haven’t tried you haven’t lived.

You only live once. Doesn’t it go by in a blink?

-----------------------------------------------------------------------------

Now I am quietly waiting for
the catastrophe of my personality
to seem beautiful again,
and interesting, and modern.

The country is grey and
brown and white in trees;
snows and skies of laughter
always diminishing, less funny
not just darker, not just grey.

It may be the coldest day of the year.
What does he think of that?
I mean, what do I?
And if I do, perhaps I am myself again.

Frank O’Hara, ‘Meditations In An Emergency’.

Social Networking: Liable for Libel?

Living in the midst of a social networking revolution is not without its legal consequences. The rapid advance of our current communications options has made the world smaller than ever before. Communities are linked by electronic immediacy in a new one-click culture of all-consuming information. Facebook, Twitter and Skype are not just internet platforms for cyber fiends; they are populist portals, available for free on computers, phones and e-tablets. They consolidate and disseminate our thoughts and our movements; our lives. Amidst this tsunami of data lurks a new form of litigation. Social media libel may not be at the forefront of an average microblogger's mind, but for media lawyers in the twenty-first century it is fast becoming the defining defamation battlefield. Radio, television and the print media may still be the subject of last-minute super-injunctions and traditional conflicts over libel and privacy actions, but as social networking pulses through the fabric of modern society, so too does the possibility of internet libel on an increasing scale.

Litigation based on social networking has advanced dramatically in the past ten years, creating a number of considerations for legal teams. Issues of publication, jurisdiction and meaning, alongside limitation period reform, are regular themes. This article surmises these key trends and offers a commentary on legal developments.

Traditional libel actions tend to involve conventional media where it is reasonably simple to locate, and bring a claim against, the publisher of the statement. Social media affords publishers a cloak of anonymity, allowing users of networking sites to veil themselves under the guise of usernames and pseudonyms, operating out of web pages run by internet service providers (ISPs) that have little or no connection with the individual. The landmark case of Godfrey v Demon Internet (Godfrey v Demon Internet [2000] 3 WLR 1020) held that an ISP cannot argue a defence of innocent dissemination if it is given due notification that a defamatory statement has been published by a user of its site. It is clear that an ISP can only avoid becoming a party to litigation if it can prove to have no knowledge of the defamatory material, or a reasonable belief that the material was not defamatory, or if reasonable efforts were made to remove the statement as soon as possible upon notification.

While such methods may remove an ISP's potential liability, they remain intrinsic players in identifying the ultimate wrongdoer. Many internet libel actions require the originally anonymous publisher of the statement to be identified through a Norwich Pharmacal disclosure order (Norwich Pharmacal Co v Customs & Excise Commissioners [1973] 3 WLR 164). Such an order compels an ISP to provide details of the potentially offending publisher, including the IP address of the specific computer used to make the statement.

Norwich Pharmacal's relevance is helpfully illustrated by the July 2010 settlement between Orlando Figes (the defendant), an historian and writer, and two rival academics (the claimants), after the defendant posted fake reviews of the claimants' books on Amazon. The defendant originally argued that he had not published the comments. A subsequent Norwich Pharmacal order, obtained by the claimants against Amazon's ISP, traced the statements back to the defendant.

Obtaining a Norwich Pharmacal order can, however, be a lengthy process, and may involve considerable expense. This is particularly the case in relation to the world's most popular social networking sites, often with headquarters in the USA. In October 2009 the High Court gave permission for an injunction to be served via Twitter on an unknown user who had been masquerading as the right-wing political commentator Donal Blaney. Beyond obtaining a disclosure order against Twitter's ISP, this was the only way to make contact with the individual. This followed an Australian case where a court order was served through Facebook. Lawyers now have recourse to both the Norwich Pharmacal approach to identify publishers of potential social media libels, and new opportunities to use the same networking platforms where the statements are made to bring an immediate action.

Social networking is an international phenomenon, crossing borders and continents instantaneously. Identifying the ultimate wrongdoer and enforcing a claim is complicated further by jurisdictional issues. A libellous statement posted on a social networking site could be the catalyst for libel actions in a number of countries simultaneously. The case of Gutnick v Dow Jones (Gutnick v Dow Jones [2001] www.austlii.edu.au/au/cases/vic/VSC/2001/305.html), in the Supreme Court of Australia, held that the Australian claimant could sue the American defendant company in Australia for comments about the claimant published on the defendant's website. The internationalisation of internet defamation has created a myriad of jurisdictional issues for lawyers and potential expenses for clients. Some jurisdictions do not recognise judgments formed in the courts of others. This is most notable in the USA, where UK libel judgments are prevented from being enforced. An interesting development, then, has been the use of the social networks themselves, almost as their own quasi-jurisdictions, as the recent service of claim forms and injunctions on Facebook and Twitter has demonstrated, circumventing the need for multiple service (and excessive legal fees) across a number of courts.

While issues of publication and jurisdiction have posed problems for litigators, successful actions still require the basic elements of defamation to be successfully made out. Courts have been quick to point out a difference between networking frivolity, as evidenced by casual and informal statements on message boards and chat rooms, and more serious statements that 'lower the estimation of the claimant in the eyes of right thinking members of society' (Section 1, Defamation Act 1996). The cases of Islam Expo Ltd v The Spectator (Islam Expo Ltd v The Spectator (1828) and another [2010] EWHC 2011 (QB)) and Sheffield Wednesday v Hargreaves (Sheffield Wednesday Football Club and seven others v Neil Hargreaves [2007] EWHC 2375 (QB)) demonstrate this. In Islam Expo the Court felt that, while words about the claimant were published on the defendant's website over a period of seven months and formed part of general message board discussions, it was important to put potentially defamatory words and statements into their proper context and meaning, and for their seriousness to be judged accordingly. The claimant company helped organise a bi-annual Islamic exhibition, which went by the same name as the company. While some internet message board posts were deemed to be casual and without malice, and hyperlinks in the text of the complained-of statements did not infer anything libellous on their own, the Court felt it perverse not to infer that the complained-of statements were defamatory of the claimant company rather than just the event being organised. The statements were of sufficient seriousness to bring a successful claim precisely because of the context and mode within which they were made.

Message board posts were also critically evaluated in the Sheffield Wednesday case. The claimant football club, who wanted a Norwich Pharmacal order against a fansite's ISP in order to disclose the identity of its posters, were concerned by statements on the site that were allegedly defamatory of the claimant's board of directors. The Court distinguished between informal football colloquialisms and more serious suggestions as to the alleged greed, untrustworthiness and dishonesty of the claimant's board. The order was thus granted only against the ISP for users of the site whose messages were deemed serious enough within the context of the overall manner of the other posts.

In the case of Bryce v Barber (Bryce v Barber [2010] http://www.telegraph.co.uk/technology/facebook/7912731/Law-student-wins-10000-after-being-branded-a-paedophile-on-Facebook.html) Tugendhat J pointed out that at the heart of the case was the defamatory material, rather than it happening to be on Facebook. Here, the defendant inferred the claimant was homosexual and a paedophile by posting child pornography on Facebook with an accompanying picture of the claimant alongside a comment. The claimant was ultimately awarded £10,000 in damages after it was shown that, despite the relatively short period of time that the material was published for in comparison with conventional media forms, there had been over eleven links to the post, two independent comments and that more than 800 users could have viewed the material. The Court held that the defendant had acted with intent and malice, and ruled that arguments raised by the defence regarding the temporal nature of the material due to it being on Facebook were irrelevant. The material had clearly defamed the claimant, regardless of its form.

Bryce affirmed the landmark decision in Firsht v Raphael (Firsht (Applause Store Productions Limited) v Raphael [2008] EWHC 1781 (QB)), which was the first libel and privacy case to reach trial concerning Facebook. It demonstrated that the level of damages for defamatory material posted online can be substantial, even if the material only remains available to the public for a limited period. The defendant argued damages should be low because the material had only been available for 16 days, but the Court did not accept this. Instead, the Court held that an action could be brought for libellous material in the social media arena and that existing libel and privacy law would be applied. The fact that the material was only available for 16 days was countered by the specific issues caused by it being published on Facebook. While only temporarily available, the nature of Facebook meant the material could be viewed many times over, particularly as the fake profile that formed the crux of the libellous material was signed up to Facebook's London network, and was thus searchable by over 700,000 people at the time.

It is clear that Courts are assessing alleged libels through traditional applications of defamation law whilst acknowledging the complexities of social media: multiple cross-border publications, intra-jurisdictional challenges, and instantaneous electronic reproductions.

The Firsht case encapsulated all such issues into one legal landmark, involving a Norwich Pharmacal order to trace the creation of the fake profile to the defendant's computer, a discussion over publication and damages, and conventional application of the law of intent and malice. Since that decision in 2008, internet defamation has gone from being an unusual precedent to a legal certainty. Looking ahead, debate is likely to centre on limitation period reform. In an era of re-tweets, shared links and virals, a greater degree of regulation is needed when managing the time in which a claimant can bring an action. As social media networks develop apace on personal computers and phones globally, lawyers now find themselves representing clients in libel actions across a multitude of media forms and must strive to keep a step ahead of our socio-technological revolution's rapid advance.