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Internet messaging legal issue: Defamation – If you publish defamatory statements via internet messages you may face legal issues for civil defamation, and in some countries criminal liability. Defamation is a tort, or legal wrong. It is a general term which is used globally, but in some countries can be divided into two categories, libel and slander. Australia has abolished the distinction between libel and slander. A defamatory statement is one which lowers a person’s reputation in the minds of right thinking members of society generally, or causes them to be shunned or avoided.

Libel refers to defamation by writing, images, broadcast or published works, and tends to be in a permanent form, although in England defamatory statements made in theatre are treated as a form of libel. Slander refers to defamation which occurs through speech, sounds, sign language, or gestures; generally communications of a more transient or ephemeral nature. It isn’t always a simple task to assess whether a communication falls into the category of libel or slander. However there is an important legal distinction between libel and slander where the distinction remains. Libel is legally actionable without the need to prove damages, whereas slander requires that the person who is slandered prove special damage to succeed in an action.

There are four exceptions to the above rule in relation to slander where a person can sue if they have been slandered without proving they have suffered damage. The first is where statements have been published accusing a person of committing a crime which can result in imprisonment. The second situation is where statements have been made that a person has a serious contagious disease. The other two categories include suggesting a person is unable to carry out their trade or business or making statements that they are sexually unchaste.

The victim in the above cases of slander only needs to prove a statement has been published. In Commonwealth countries publication of a defamatory statement takes place where the statement is first perceived by a third party. This means that over the internet you can expose yourself potentially to any jurisdiction’s laws of defamation and the person who has been defamed can try to sue you in their country’s courts. Whether they can actually do so depends on several factors.

When engaging in instant messaging it is easy to forget that you could face legal issues if you commit defamation. The victim only needs to show your internet message was published to a third party for you to encounter legal issues if the statement was defamatory or falls into one of the categories above. If the victim were by themselves at the time the statement was received, this would not give rise to legal issues, however if a third party was present when the instant message was transmitted, you could face potential liability for defamation.

Instant messages are similar to other electronic communications like email, posts to forums, bulletin boards, usenet groups and websites, although the latter are all sent via a host computer and stored in a tangible permanent medium until altered or deleted. If they are defamatory in nature, they would constitute libel. By contrast, a communication made by instant messaging (IM), internet relay chat (IRC) or video messaging would probably constitute slander as the user who has engaged in internet messaging is involved in instantaneous real time synchronous communication, analogous to a phone call. The only difference is that internet messaging technology can now entail the transmission of text, graphics, files, video and/or audio. Such communications being instantaneous and interactive resemble the legal character of telephone communications, although when fixed in a tangible medium as an attachment and exposed to a wider audience, they could also constitute libel.

The user who publishes a slanderous statement through internet messages (IM) may believe there are no legal issues which are different from ordinary email or other use of the internet. However it is likely that the user who publishes a communication via an IM will be creating potential legal issues for slander. It is possible to save a text conversation arising through internet messaging (IM) as messages are logged in a local message history and can be retrieved.