Gina Ford and Damien Hirst have been experiencing problems with websites to which they object.
Gina Ford - the contented babies expert often referred to as the "Queen of Routine" - has had her baby-rearing methods criticised in material posted on the website www.mumsnet.com which is hugely popular among mothers with babies and young children. She claims that some of the hostile comments against her personally are libelous because they attack her character and reputation.
Damien Hirst has long been the bete noir of the British art world. He has reacted to a spoof website created by Simon Phillips, a young "internet artist". It uses his name as part of the spoof site's domain name. Hirst claims that Phillip's site makes money out of his name and could be confused with his official website.
Laurie Heizler, intellectual property partner at Leamington-based law firm Wright Hassall LLP, says that both situations are increasingly common in the world of electronic communications but each of them raises different issues.
The owners of the Mumsnet website say that they should not be responsible for policing the material that people post on the website. They say that it is disproportionate for Ford to demand that they disable the website or even remove significant threads of chat as this would diminish its value as an informative and open medium. Nevertheless, unless they take such draconian steps, Ford may sue for libel.
Plenty of examples exist of damages awards and financial settlements following Internet libels. Last year, a well-known member of the UK Independence Party received £10,000 because he was defamed on an Internet discussion board but this hardly compares to a case in 1997 where internal emails making libellous complaints about an insurance company resulted in a damages award in the region of £450,000. In 1999, British Gas was sued over internal emails which defamed an ex-employee and his company - the case was settled on the basis of a payment of £101,000.
Injunctions can be granted even against anonymous individuals who publish unlawful material on the Internet and orders can be given by the court to compel the disclosure by an ISP of the names of individuals. By publishing defamatory material, the website owner is of course also in the frame. But, says Laurie Heizler, it is not so easy to attach liability on any internet service provider if it can show that it did not know anything about the defamatory material and did not facilitate its posting. Alternatively, the ISP is not liable if it is a "mere conduit" of the material and does not store it for any period longer than is reasonably necessary for transmission.
Most internet libel issues raise nothing new. It is simply a question of making traditional defamation law adapt to the digital age. "Cybersquatting" is however a different proposition, invoking issues of trade mark infringement and passing off. Domain name registries such as Nominet have their own dispute resolution policies to deal with domain name ownership issues.
Phillips alleges that his "unofficial" Damien Hirst website is not a business proposition and has only made modest financial returns from advertising. Nevertheless, it is not a tribute site and is capable of doing damage to the official website. Phillips can be seen as the classic "cybersquatter" who trades off another person's own name, trade mark or reputation for his own private ends. The courts and the relevant domain name registries can order a "cybersquatting" domain name to be transferred, in this case to Hirst or his nominees, but Laurie Heizler says that Phillips could have a freedom of speech argument in his favour. Hirst might also be in a weak position if he cannot show that sufficient goodwill attaches to his own name.
Generally, the law protects website owners from abusive registrations, particularly if owners have registered trade marks incorporated within the domain name address. Nominet's dispute resolution service for .uk domain names is said to be successful in 55% of cases with a further 11% being settled amicably before mediation.
It is usually cheaper to resolve issues through domain name registries than by action through the courts, but all remedies should be considered and several pro-active steps can be taken. Problems arise however where a competing URL registration is made in good faith and the "cybersquatter" has a good claim in his own right to the essential part of the domain". Equally a grudge site may successfully hold onto a domain which includes the name of the target brand as long as the domain name itself is plainly a grudge site, such as the infamous 'Monsantosucks.com'.
