The recent case of a senior bank executive being impersonated on Twitter by an anonymous user who tweeted defamatory material highlights the difficulties of establishing the identity of anonymous impersonators, reports Minter Ellison.

A ‘Top Ten Dirtiest Hotels’ list of an online travel ratings site, based upon user comments and data, has been held not defamatory because a reasonable person would understand the list to be “unverifiable rhetorical hyperbole” rather than a statement of fact, reports Holland & Knight.

In Seaton v. TripAdvisor, LLC, the defendant aggregated opinion of the site’s millions of online users. A Tennessee district court granted the defendant’s motion to dismiss, concluding that the plaintiff failed to plead any facts that showed the defendant made a statement of fact, or a statement of opinion that it intended readers to believe was based on facts.

The court also noted that although the site’s method of arriving at its conclusions (i.e., unverified online user reviews) was “a poor evaluative metric”, it was not a “system sufficiently erroneous so as to be labeled ‘defamatory’ under the legal meaning of the term”.

Bettina Wulff, wife of former German President Christian Wulff, claims she has been defamed by Google’s automatically-generated suggested search terms “bettina wulff escort” and “bettina wulff prostituierte”.

Ms Wulff maintains that she has never been a prostitute, and wants the imputation that she has been scrubbed from the search terms that are suggested when people enter her name in by Google’s search engine.

The New York Daily News reports that rumors Wulff had an X-rated past have circulated since 2006, and are believed to have been spread in order to do damage to her husband’s political career.

A Swiss appeal court has found that automatically-generated suggested search terms are not statements made by the search engine. Thus, Google has no legal liability for suggested search terms that have negative imputations.

Robert Kennedy College had argued that the suggested term “Robert Kennedy College scam” implied that the college was involved in fraudulent activity.  Google responded that the terms displayed by Google Suggest were mere search suggestions rather than allegations by it, and that the ordinary Internet user was fully aware of this fact.

The courts at first instance and on appeal agreed with Google.

According to the Jura Cantonal Court, it is inappropriate to impose on search engine operators the same responsibility as is imposed on editors of traditional media without the risk of making internet access much more expensive or even impossible. The court also concluded that Google had no obligation to eliminate a specific search suggestion after being informed by the aggrieved party, since it would result in the type of censorship prohibited by Article 17(2) of the Constitution.

For an excellent account of the case, and a comparison of it with other European decisions on this issue, see the Wenger Plattner report authored by Roland Mathys and Christoph Zogg.

The Australian Advertising Standards Board has ruled that a Facebook page may be considered a ‘marketing communication tool’ when used by an advertiser, reports King & Wood Mallesons.

As a consequence of this ruling, advertisers are responsible for ensuring that all content on their promotional Facebook pages is in compliance with the Advertiser Code of Ethics, including content uploaded to the advertiser’s pages by other Facebook users.

The Court of Appeal for Ontario has reversed the dismissal of a proposed action for defamation in the context of online political discourse in the “blogosphere”.

Oslers reports that in allowing the appeal and directing that the action proceed to trial, the court acknowledged that the “internet blogging world” is an environment where caustic commentary and hyperbolic language may be commonplace. In so doing, the court went so far as to raise the possibility that different legal considerations might even apply to different Internet forums, such as Facebook or Twitter as compared to blogs.

The Court of Appeal’s ruling did not ultimately resolve any of these issues, nor did it comment upon the merits of the plaintiff’s defamation suit. Rather, its decision was limited to a procedural determination that the proceeding should not be disposed of by means of a summary judgment motion, but rather should be determined on its merits on the basis of a full factual record.

Claimants increasingly target ISPs to have allegedly defamatory material removed quickly. This, combined with a low harm threshold and ease of establishing jurisdiction in the UK has, according to the government, had a “chilling effect” on freedom of speech. The draft Defamation Bill plans to change all this.

Read here a discussion of the background to the Bill and its key proposals by Latham & Watkins.