In what could be a landmark case, actor Ron Livingston – known mainly for his starring roles in “Sex And The City”, “Swingers” and “Office Space” has issued proceedings against a “Hacker” who has created false Facebook and Wikipedia entries which suggest that the 42-year old star is, in fact gay and in a relationship with a man named Lee Dennison.
Livingston married actress Rosemarie DeWitt in November and issued proceedings in Los Angeles Superior Court on 6 December against the unknown individual, claiming that he had committed “despicable acts and seeking damages for libel, invasion of privacy and use of his image without permission.
Livingston’s publicists have altered postings on the sites previously, but the Hacker has almost immediately replaced them, according to Court papers.
Celebrities suing websites is nothing new. The last few years have seen an exponential growth in the numbers of claims against both the print and online press as well as other sites brought by Celebrities who either take issue with the way they are portrayed or how their comments are “spun” by journalists through defamation claims, or object to details of their personal lives being exposed through privacy claims; the most well-known example being the infamous case of Max Mosley – the Formula 1 tycoon who saw details of his participation in an alleged “Nazi Sex Orgy” reported in the News Of The World and the video leaked online.
Being “the libel capital of the world”, the British Press are used to this sort of thing, especially given the perceived problem of “libel tourism” – where public figures based outside the UK convince our Courts to hear cases on the basis that, if an article can be read online in the UK then our judicial system should have jurisdiction to deal with the dispute and award damages, which tend to be higher than those awarded in the US or elsewhere. Even Arnold Schwarzenegger, who himself was involved in one of the leading cases on internet libel over an allegation that he had behaved inappropriately towards an English reporter, is taking steps to stop English libel judgments being enforced in California whilst Jack Straw and Judge Eady, one of the country’s leading libel and privacy Judges argue over whether there really is a problem and how to reinvent libel for the 21st century.
America, however, is no stranger to this kind of case. Libel claims are a daily hazard for many gossip websites such as TMZ, who are often willing to take a commercial risk in publishing edgy material that may open them up to liability in return for a spike in visitors to their site and the generation of advertising revenue. However, we’re not talking about a gossip website here. The easy headline would be that Livingston is suing Wikipedia, but that’s not true. He is taking action against a third party who is using Wikipedia and Facebook to disseminate rumours as to his sexuality.
Some websites and blogs who’ve picked up on this story are already asking whether or not this case will set a precedent on how to deal with anonymous Hackers. Fewer are looking at the issue of why Livingston didn’t simply sue Wikipedia. In the UK, that would be fairly logical. Libel claimants have the option here of suing both the person who made the defamatory statement about them (i.e. one which damages their reputation in the view of “right-thinking” members of the public who are not overly sensitive or overly dismissive) and any third party who “publishes” or repeats the statement – hence why many claims are made against the maker of the statement and a larger publication who could afford to pay costs and damages in the event that the original comment came from someone who couldn’t. This is the subject of intense debate at the moment, with campaigners arguing that costs in libel cases should be capped and a “single publication rule” introduced whereby accessing an online version of an article would not count as “republication”.
While that debate rumbles on, the US position is clearer – Livingston didn’t sue Wikipedia due to the fact that section 230 of the Communications Decency Act 1996 prevents him from doing so. It reads: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” – such as blogs, comments, or contributions to social media and collaborative sites such as Facebook and Wikipedia. Taking on the sites directly is clearly not a viable option for Livingston’s legal team.
What Livingston can do, however, is try to force Wikipedia to reveal the identity of the Hacker via subpoena and then seek an injunction against him to stop any further objectionable commentary. The situation in the UK is similar in many ways. Although UK claimants would probably sue the site as well as the Hacker, to be able to do both you will need details of the Defendant’s identity. Websites would normally resist doing so to comply with the Data Protection Act 1998, as it would mean disclosing personal information without authorisation.
This would leave another option – to apply for a “Norwich Pharmacal” or “Motley Fool” Order, which would force the site to provide you with the details provided that such disclosure is in the interests of justice and the anonymous Defendant is part of the “wrongdoing” and likely to be made a Defendant to any subsequent claim.
You could also look to take action against the site’s ISP under the terms of the Electronic Communications Regulations 2002. ISPs provide the means to disseminate commentary (including defamatory statements) around the web, and as such would be theoretically open to a claim for libel on a site which they host or provide access to. That is, as long as they don’t know about it and aren’t acting as a “mere conduit” – if a request is made to remove the comments which the ISP ignores, then they may well be liable.
The fact is, though, that this kind of action then becomes an exercise in reputation management as much as a legal claim. It may be straightforward to shut down one blog containing negative commentary, but the nature of the internet means that the comments may well then appear on other sites. What starts out as an action against one can turn into a war on many fronts, and one which isn’t easy to win. Not only that, but accusations such as those at the heart of Livingston’s claim may draw criticism that he is trying to stifle public commentary on his sexuality and lead to accusations of homophobia. US courts have recently ruled, in a case brought by Howard Stern and despite a 2003 lawsuit which saw Tom Cruise win $10 Million after an allegation that he had been involved in a relationship with a male porn star, that being accused of being gay is not necessarily defamatory. UK courts have previously awarded damages to Celebrities who have been accused of being gay on a number of occasions, notably in 2005 to Robbie Williams after reports in Star Magazine.
The moral would appear to be that, in the UK, clamping down on unfavourable (and defamatory) comment on the web is much more straightforward – although not before careful consideration. It may be if you’re going after a Journalist or publication, but if it’s a user of a social networking site or a contributor to a Wiki, then you may need to dig a lot deeper and spend a lot more to find out who you actually need to sue in the first place. Reputation Management in the world of Social Media and instant commentary may well be the next major battleground for UK lawyers and it’s going to be interesting to see how this case plays out.