What counts as a ‘third party’ in the context of libel?

Question

This post asks about the law jurisdiction of England & Wales.

As I understand it, and I am happy to be corrected on this point, for a written statement to be libellous, it must be published to a third party (i.e. a party other than the claimant).

Here is my scenario:

In an online chatroom (Chatroom C) on a website with many users (Website D), there are only two male users, A and B, and no other user is ever, or will ever, enter the chatroom or know what has been said in the chatroom.

During a heated argument between A and B, A falsely accuses B of a crime, and that accusation never leaves Chatroom C. Assume A’s accusation is a statement capable of causing serious reputational harm.

B says he will bring a claim of defamation against A. A says that he did not publish his false statement to a third party. He only communicated it to B. B then responds that, actually, he did communicate it to three third parties, A’s internet service provider, B’s internet service provider and Website D, because, B furhter asserts, that they can all see what has been said in Chatroom C, which means that his claim of libel is still actionable.

Who is right in this situation, A or B?

Answer 1

B is correct. A has published the statement to the chat room provider.

B will still likely lose the case. Although the defamatory statements were published to the service provider, the service provider probably neither knows nor cares. B has therefore not suffered any damages from the defamation.

Answer 2

england-and-wales

The question's scenario says each person A and B makes claims about who can or can't see the statement. The scenario does not explicitly state who is right. This is why Jen commented that the question seems to be about the facts, not the law. Here, "who is right" depends on the facts.

On the basis of the scenario, all we can say about the law is that:

• if only A and B can see the statement then A is right: it wasn't published to a third party, therefore it can't be libel (publication to a third party is a necessary element of libel)

• if more than A and B can see the statement - i.e. there is a 'third party' - then B is right, it was published to a third party and could be libel

The claimant (B) must prove they are right that a third party can see the statement, along with the other elements necessary to prove libel.

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To prove libel, the claimant (B) must prove that the statement complained of:

• is published to a third party
• refers to or identifies the claimant
• would make an ordinary person think worse of the claimant as a result of reading the statement
• caused or is likely to cause serious harm to the claimant's reputation (or serious financial loss, if the claimant is a for-profit business)

Answer 3

A statement is published for defamation law when it is sent by the defamer and understood by a third party

If I say something nasty about you in a rowdy football crowd and you can’t find someone there, other then you, who understood what I said, I haven’t published it - even if I yelled.

So, B might be right if they can prove that an actual human at either ISP or the forum has read the defamatory remark, not just that someone could read it.

We can forget the ISPs - the data is encrypted, fragmented, and transitory. The chances that anyone would have read it are effectively nil.

With the forum owner, B could subpoena their log files to see if any moderators or administrators accessed the defamatory comment. If they did, they have a case; if they didn’t, they don’t.

Note that any access in response to B’s subpoena or other enquire is not publication by A, B is now effectively the republished and any infamy that comes from that belongs to B. The Streisand effect at work.