Defamation, according to the Concise Oxford Dictionary, means to "damage the good reputation of" and comes from the Latin word "diffamare" - to spread evil report. That means if you say something that might affect a person's reputation you can be liable for defamation. It doesn't have to be a personal attack - there's nothing to stop a corporation or government department suing for defamation, however according to one lawyer I spoke with, they usually don't win.
But in New Zealand it goes one step further - if I write a story about a defamation case, and include details, I can be held liable for spreading the defamation further. As a defence, I would have to prove not that Bill said something nasty about Ted, but that what Bill said about Ted was true. When repeating rumour and speculation online, caution should be the order of the day.
The problem online is more a clash of cultures - the old guard and the new, as one player puts it.
Older users tend to forget that they're not in the middle of a pub, arguing amongst friends when they flame each other online. They're publishing material for all the world, literally, to see. The same rules that newspapers and magazines have to abide by apply to email and newsgroup and chatroom postings and that takes a bit of getting used to. The problem is most veteran users are quite at home with the idea of flaming and the abuse that passes for constructive criticism on the Net. Anonymous postings mean anyone can say anything about anyone without too much fear of retribution, and that's lead to a culture of abusive language that some can be quite uncomfortable with, newer users especially.
It's also a clash between the technically savvy and the newbie - those folk who have come late to the Internet revolution and may not even have much of a technical background at all. Take the CFO of any organisation - he or she is probably a trained accountant, yet many are being called on to set up or run IT systems in our smaller companies. They may be unhappy with the level of debate or abuse they encounter online and may take these attacks personally. Anyone with a legal background could very well take the approach that these statements are defamatory and should be dealt with accordingly.
I think the online world where like-minded folk gather together to discuss issues is being impinged on by the corporate world of lawyers and non-technical folk. Gone are the days where you could happily post comments with your email address for all to see - spam merchants will come looking for you to add to their databases. In fact, the real world is looming over the virtual more and more.
Corporates have some difficulty - mainly because the Internet was never designed for corporate use. Consequently we have the patent wars raging in the US, where companies claim they own the rights for everything from shopping to typing and that we all owe them money. We have cease and desist letters going out to fan sites, telling them to stop posting script excerpts, pictures, sound files and so on and generally upsetting the very people who are your biggest source of income - the customers. We have emails being used in court to prove one person's bias or malicious intent and so on. Defamation is just one of the quirks of law that users must get used to.
Which begs the question: do laws designed for a corporeal world work in the virtual? Should we twist them to fit or should we instead come up with a new set of laws to govern cyberspace? Is defamation really an appropriate response to being flamed?
I would argue that it is not, but then I'm not a trained legal mind.
Not all defamatory statements are met with a letter from the lawyers, however. I pointed out to Russell Brown that he'd been defamed online and he chose to rise above it. "I hope I'm more mature than that" he said.
In the final analysis, the online world will probably have to settle somewhere between the two extremes of real world legalese and virtual world free-for-all. Perhaps a more mature attitude all round would help achieve that goal.
Paul Brislen is a regular columnist and reporter for Computerworld.