Never before has English law been so widely used to threaten the publishers of seemingly innocuous information, and it is increasingly an area in which IT leaders need to be aware of their firm’s legal responsibilities.

As a communication medium, whether in-house or internet email, chat rooms, instant messaging, message boards or blogs, the internet, with its inherently international nature and its general lack of respect for borders, has provided the more litigious members of society with abundant fodder for opportunistic claims.

Statements are defamatory if: they identify a particular individual or organisation (either by name or by innuendo); they tend to lower the subject in the eyes of right-thinking members of society such that damage to reputation may be presumed; and the statement is published, that is, communicated to a third party.

Internet publishers are bound by the same libel laws as print publishers. Web site operators are publishers who have the usual defences of justification (truth), fair comment, qualified privilege (public interest), and innocent dissemination; and the same onerous evidential burden to prove the truth of the statement, or any other defence.

The author of the defamatory statement will be liable for any damage it is alleged to cause to the reputation of another.

So just as a print journalist may be liable, so too will the message board poster. Likewise, just as a company is liable for the acts of its employees committed in the course of their employment, the writer’s employer will also be liable for the defamation. Indeed, a claimant may be more likely to pursue an action against the deeper pockets of a corporation than against the employee who sends a defamatory email.

Web site hosts and ISPs may also be liable for defamatory postings on their message boards or web sites, even though they may not be aware that the potentially libellous posting was there until it is brought to their attention.

Action is possible against all persons responsible for repeating, publishing or otherwise circulating the defamation. Further, every day that the defamatory posting adorns a site, and every repetition of the words, for example by the forwarding of an email, constitutes a new publication for which the publisher may be liable.

Section 1 of the Defamation Act 1996 does provide a defence of ‘innocent dissemination’ upon which ISPs and web site hosts should be able to rely.

But the defence requires an ISP to show that where it was not the author of the statement, it took reasonable care in relation to its publication. Unfortunately, in proving that it took ‘reasonable care’ the ISP or web site host may be plunged into the definition of editor and/or publisher, and so render itself liable and unable to use the defence.

That said, the defence of innocent dissemination can help in relation to blogs. A blogger will be responsible for any defamatory remark or any breach of confidential information which they divulge. In these cases, a company will have no responsibility for such material where they simply act as a conduit for the information. Provided the firm is not aware of the material, and does not edit or monitor the postings, the defence will assist.

Also, cyberspace is less forgiving than the spoken word. The millions of emails, blogs and messages produced everyday are preserved in semi-perpetuity, or at least until the relevant hard drives are wiped.

There are a number of steps organisations can take.

Once you are aware of a potentially defamatory posting, remove it from the site immediately while investigating the position. Ensure that your agreements with web site hosts or users contain provisions allowing you to block or remove the alleged libel without liability as soon as a complaint is received.

As it is often not practical to edit or control material posted on the internet, and as such course of action may disavow you of any defence of innocent dissemination, it may be prudent to ensure that the site has a visible abuse policy noting that messages are not routinely moderated and forbidding users from posting defamatory or abusive messages.

Employers should ensure that confidential information is adequately defined in their employment contracts and that employees are educated with appropriate guidelines about the potential for individual and corporate liability relating to data protection, breach of confidence and defamatory statements.

Mark Stephens is a partner and Gina Latner a lawyer at law firm Finers Stephens Innocent. Stephens is a contributor to International Libel & Privacy Handbook, published by Bloomberg Press and distributed in the UK by Kogan Page.