Our peripatetic and occasional scribe, Alex Wade, contacts us in a state of high anxiety. He is talking, a little feverishly, about Eastenders. We confess that we rarely, if ever, watch the popular BBC1 soap, but Wade insists that one of its storylines has, in creating a separate story of its own, brought to fruition predictions he made about the risks of stray mobile phone messages.
It turns out that woman who received nearly 3,000 unwanted text messages after her mobile phone number was displayed on EastEnders has had her complaint upheld by media regulator Ofcom. It also transpires that Wade wrote a piece for The Times some eight years ago which has some resonance with the present story. Resonance, yes, but it’s not quite the same thing. However, here it is, by kind permission of Wade and by way of a further cautionary tale:
Some years ago, the case of Western Provident Association v. Norwich Union Healthcare (unreported) heralded the brave new age of the email policy. Rival medical insurance companies had become embroiled in litigation over the content of emails. Ultimately, the defendant settled with payment of damages estimated to be in the region of £450,000.
Astute employment lawyers promptly began crafting email policies precisely to forestall, or at least minimise, the consequences to an employer of defamatory (or otherwise problematic) emails sent by employees. It is now commonplace in every reputable organisation to find an ‘Email and internet policy’ appended to the personnel handbook. A contravention of the policy via the dissemination of unauthorised defamatory material will result in disciplinary action, possibly even dismissal.
So much for email. What, though, of its curious, more transient sibling, the text message?
A text message would appear to be even more ephemeral than an email. It is a medium of communication dependent on truncation and ellipsis. Each morning on any commuter train beeps will sound every two or three minutes, confirming the to and fro of messages. The recipient replies, perhaps to confirm that he or she can make the rescheduled 10.00 a.m. meeting, perhaps rather to suggest a time for a more illicit rendez-vous. What, though, if the two people texting one another are defaming a third party?
‘The new boss is a crook – he did time!’ screams a message sent by employee A. Employee B follows up with ‘I don’t trust him – does anybody?’ They continue in similar vein for the remainder of the journey. All very cathartic, but the new boss has been defamed, he’s identifiable, and publication has occurred to a third party. The three pre-requisites for an action for defamation have been satisfied.
The limited publication may not equate to significant damages. But supposing Employee B sees a friend on the train, and says ‘Guess what, this is what A thinks of the new boss’. Employee B scrolls down the screen of his phone and shows his friend the statement that the new boss is a known fraudster. Unwittingly, B has just upped the ante.
The grapevine wends its insidious way and soon enough the new boss is aware that defamatory text messages are circulating about him. Everything said about him is wholly untrue, and as the chairman of a major PLC he can’t afford to have rumours that he was imprisoned for fraud circulating. Not unreasonably, he consults his lawyers.
The first thing they would have to determine is whether a text message would be treated as a libel or as a slander. The distinction is important given the need for financial loss to be proved in certain categories of slander (not necessary in the case of an allegation of conduct constituting a criminal offence). In so far as the internet is concerned, though there is no settled authority it is thought that defamatory publications on the internet are libels. However, it has also been contended that words appearing in an internet chat room for a brief period would, in fact, be slanders. If this is the case, does the even greater evanescence of text messages mean that they would be regarded as slanders?
Caroline Kean, a defamation expert with Wiggin and Co, thinks not. ‘Text messages are stored on servers – don’t forget that advanced mobiles and PDAs can be set up to relay everything to a PC. In my view, a text message would be regarded as publication in permanent form – a libel.’
But who is the publisher? Clearly Employee B is liable as the original author of the offending message, but what of the network provider? Would the likes of Vodafone and Orange be potentially liable, as an ISP in the case of internet publication? And if so, would the ‘innocent dissemination’ defence under section 1 of the Defamation Act 1998 apply? Caroline Kean says that the network provider would theoretically be liable, but would be protected not only by the innocent dissemination defence but also by sections 17, and 18 and 19 of the Electronic Commerce (EC Directive) Regulations 2002. The regulations exclude liability if the operator has acted as a mere conduit provided that it has no knowledge of content being defamatory and has not edited such content.
If the network provider is likely to avoid liability, it is clear that for employers allowing employees to use mobile phones this is a minefield into which someone will soon trespass. An employer would be vicariously liable for the acts of employees sending defamatory text messages: they are doing an authorised act (using a company mobile phone) in an unauthorised manner.
Companies should take great care to make employees aware that an irresponsible text message could have consequences every bit as severe as an email or letter. ‘Best practice would indicate that use of mobile phones should be brought within defined parameters and clearly spelt out,’ says Caroline Kean.
It may cost to hire a lawyer for the necessary drafting, but this would surely be money better spent than on a hefty, and avoidable, compensation payment.
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