Defamation, Libel and the Internet

Bruce Everiss is a well-known video game marketer who writes a blog on the topic entitled, quite appropriately, Bruce on Games.

In recent weeks Everiss has been very critical of the online role-playing game Evony, perhaps most famous for it increasingly sexualized ads, and highlighted what he saw as misconduct by both the company behind the game, Evony LLC, and the software itself.

Everiss was always careful to support his allegations with research, either his own or referencing work performed by others, but he nonetheless found himself on the receiving end of a threat of a defamation lawsuit.

While this is not completely out of the ordinary in and of itself, what made Everiss’ case more unusual is that the threat was coming from an Australian solicitor and was threatening action in an Australian court. This is despite the fact that Evony LLC is, by all accounts, a Chinese company and Everiss is a UK-based blogger.

Other authors who have written about Evony, including the UK newspaper The Guardian, have received similar threats. The case is controversial because much of what is being disputed as defamatory is widely viewed as being true, with at least some evidence to support it, or appears to be personal opinion. However, clearly Evony disputes this and calls Everiss’ statements “clearly defamatory” in their letter to him.

But as interesting as the case itself is, it highlights another threat to bloggers, one very similar to what I reported on with copyright and jurisdiction, since works published to the Internet are distributed all over the world, you can defame the reputation of a company and/or a person in any country or jurisdiction. That, in turn, means you can be brought into almost any court in the world for a defamation suit.

Broad Jurisdiction

In the U.S., in many states, as well as in many countries, it does not matter where the defendant is located in a defamation case. So long as the allegedly defamatory statements were “published” in the jurisdiction, the courts there can hear the case. However, since the Internet is global, any statement viewed as defamatory can be considered to have been published anywhere in the world.

The case of Gutnick v. Dow Jones in Australia further highlighted this, by giving a course of action for an Australian plaintiff to successfully sue a U.S.-based company in an Australian court, a precedent being cited in the current Evony letters. However, what may separate the Gutnick case from the Evony one is that, Gutnick was a resident in the jurisdiction he filed suit, unlike Evony LLC, which is located in China.

Still, the danger is obvious, even if a plaintiff has to sue within their own jurisdiction, there is still the potential to be called into court virtually anywhere in the world, so long as one isd perceived as having defamed someone and a third party in that jurisdiction might have read it. That should be enough to put any blogger on guard.

Why This Might Be Bad

If you find yourself a defendant in a defamation case, this could easily be your worst nightmare. Consider the following:

1. Unable to Defend: As with Everiss’ case, the lawsuit is being threatened in a jurisdiction he has no ability to defend himself in. Financially it is infeasible to defend the case.
2. Jurisdiction Shopping: If Evony LLC is able to win the right to sue in Australia despite being a China-based company, it would open the doors for companies and individuals to “shop” for the most friendly jurisdiction simply because the defamatory material was “published” there. UK and Australia, for example, are known to have plaintiff-friendly defamation laws.
3. Application of Other Laws: Finally, something that might not be considered defamation in your country could be considered as such in another, opening the door to being sued even when you obeyed the laws to the best of your ability.

In short, though such broad jurisdiction for defamation cases is a boon for potential plaintiffs, it could easily have a chilling effect on speech, forcing those who publish on the Web to write for the lowest common denominator when it comes to libel law.

Some Good News

The good news in all of this is that the enforcement of foreign judgments is very difficult, at best. The U.S. State Department, for example, recommends seeking legal counsel in a foriegn country before suing locally to ensure that the judgment can be enforced. A legal case has to meet several criteria before international enforcement is likely and, even then, to enact a judgment one would have to first file motions in the defendant’s home country.

In short, unless the defendant has assets in the country the suit is filed, collecting the judgment is a difficult, time-consuming process that must take place in the defendant’s home country.

So while the tricky jurisdiction of defamation may be a license to sue anywhere, depending on how this case breaks out (if it moves forward at all), it is not necessarily a license to collect.

Bottom Line

The Internet may seem to be a wild west but you still have to be careful what you say and do. Defamation, copyright and other areas of law usually reserved for those in mass media are now impacting the daily lives of everyday bloggers. It is important to understand your responsibilities, get your facts right and obey the law.

Though that will not protect you against all lawsuits, some will sue simply because they can, not because they’re right, it will protect you against the vast majority.

Very few companies want to go to court or turn to lawyers to resolve a dispute. So, if you don’t give them a reason to and a solid case to work with, they likely won’t. It is that simple.

Update:

A representative from Evony contacted me and sent me a statement. With permission I am publishing that statement, in its entirety below. Much of the content deals with allegations by Everiss, which were not the focus of this column, but in the spirit of fairness I wanted to include their rebuttal.

Dear Jonathan,

Thank you for taking the time to address the broad issues of libel in the Internet age in your post “Defamation, Libel and the Internet” earlier this week.

You raise a number of important issues in your blog post and we would like to help clear up a number of inaccuracies and patently libelous statements Mr. Everiss has advanced in the past few weeks. Despite the appearance of the “research” you mention, Mr. Everiss’ false accusations are laced with clear examples of internationally accepted standards for libel.

Given these malicious actions, we are in fact currently investigating legal options in multiple jurisdictions where our millions of fans around the world play and support the game. As your post correctly referenced, we have opted to initiate actions in Australia on behalf of our tens of thousands of fans and players here that have been victimized by these falsehoods.

Mr. Everiss has made a name for himself trafficking in blatant lies, and the facts here are clear:

1. Evony, LLC has had at no time any association with a company called WoWMine. In addition, the company is not owned nor has it ever been owned or managed by an individual by the name of Eric Lam. To be clear, Evony has absolutely no legal or financial connection to this individual.

2. Further, despite the blatantly false claims of Mr. Everiss, none of the owners, directors or employees of Evony has ever, or are currently parties to, any legal action by Microsoft Corp.

3. Evony and our developers have in no way ever infringed upon the intellectual property of any other game or developer. There have never been proceedings against our company for any such violations of intellectual property and this accusation is entirely fabricated by Mr. Everiss.

4. Evony has never distributed any form of malware to our users. Any such action would directly impact the user experience of our millions of fans and damage the credibility of both our corporate reputation and diminish the fan base of Evony. Evony’s popularity speaks for itself – more than five million users in dozens of countries around the world have helped to grow the game in popularity without any need for malicious software.

5. Evony is in no way a Chinese based company. Evony is a registered corporation in the United States with millions of active players in dozens of countries around the globe.

Jonathan, you rightly raise the issue that “the Internet may seem to be a wild west but you still have to be careful what you say and do.” We could not agree more.

In the digital age in which we now live, online journalists and bloggers must strive for a higher standard of integrity and accuracy. Mr. Everiss’ complete disregard for even the most basic tenants of journalistic integrity and responsibility have left our company no alternative but to take these legal actions.

It is our hope that Mr. Everiss will now understand the error of his ways and correct the public record for his readers.

Thank you in advance for the opportunity to share these facts with you and your readers. Please do not hesitate to let us know if we can provide any additional information for you or your readers.

Kind Regards,

Valerie
Evony™ – Free Forever