THE SPORTS LAWYER: ‘The Pakistan spot-fixing saga highlights difficulties of dealing with defamation that can be global in minutes’

THE SPORTS LAWYER is actually a posse of Britain’s brightest lawyers, from the Sport & Media team at UK law firm, Thomas Eggar, who will be contributing features, analysis and insight on a regular basis on the key sports law issues. In TSL’s latest column, Danielle McCormick discusses how the internet age poses new challenges for all sides in defamation cases

By Danielle McCormick

2 September 2010

Before the ICC investigation has been completed and before we actually know if four members of the Pakistan Cricket Team who’ve been under investigation for alleged spot fixing have a case to answer or not, they are already being reviled on the streets of Pakistan. Although the media reports may have initially been factually correct, it is a classic case of messages being mutated faster than the time it takes for a ‘no ball’ to be bowled leaving those involved having to pick up the pieces and salvage something from the media wreckage.

Like cricket this is a game of two innings: media owners on one side and those individuals and businesses whose brands are being destroyed on the other.

Traditionally amongst the media owners, it has been the Internet Service Providers (ISPs) who have tended to be the losers in actions for online defamation. Less well known are the risks which apply to all players on the internet from search engines to ‘usenet’ hosts, website design companies as well as those using the internet for sale or marketing purposes.

The EC Directive on electronic commerce provides a partial immunity against a defamation action for ISPs providing hosting services if they did not have ‘actual knowledge’ of the information or activity taking place, or knowledge of the facts or circumstances. The moment knowledge is perceived to be obtained however, such slim protection is lost if the ISP fails to act expeditiously to remove or disable access to the content involved.

For the individual or business who finds their brand at the heart of the story it is equally as tricky to protect yourself from the pace at which the damage can occur. After all what use is an injunction when the match is already underway. The ease with which we can click to navigate from one comment to another on a story that may have been factually correct in its initial publication, but which has been mutated into a defamatory statement communicated across the globe poses a serious threat to the individual or company, and leaves the individual/company involved little time to think up an effective strategy.

Further, by its very nature, the web is a global vehicle for transmission of messages thereby creating jurisdictional problems for those seeking a remedy. For example, could a person in the UK sue for loss of reputation overseas? Technically yes, as a defamatory statement is published at the place it is read, heard or seen, and not where the material is first read on the internet.

So, how can you protect your media or brand from the perils of communication in the modern world of technology? The straightforward answer is with great difficulty as the pace of our legal system does not match the speed of our communication highways.

One thing is for sure, no matter what side you are on never before has there been a need for you to act more decisively and quickly with your PR and legal strategy so as to deal with the consequences and avoid being caught out by a ‘media googly’.