Data Collection

The examination of data is important when investigating the patterns and trends from the past76. Potter refers to three types of evidence gathering methods in qualitative research, these being document examination, interviews and observations. In addition, the author comments that the use of more than one type of data collection method will provide different kinds of evidence, making for richer comparisons77.

Choosing the appropriate method for this research was quite straightforward. The advantages the technique of interviewing offered to this research in comparison to other research techniques, proved to be the most appropriate technique to be applied.

Following the decision to take a qualitative approach, all data collection options were considered. The first option was that of questionnaires. The central reason for not using questionnaires was because of a deeper insight into the experiences of the interviewees being required. The advantage of using interviews over questionnaires for this research is that specific areas can be probed further, whilst also encouraging further discussion and comparison with other collected data.

The second method considered was focus groups. In principle the idea of bringing together a group of lawyers and a group of Internet publishers or a mix of both offered

the potential to open up a productive discussion. However, practically finding enough willing participants who would have been prepared to take part in a focus group may have been difficult if one is to compare it with the number of respondents who were willing to be interviewed in comparison to those who were contacted during this research.

A way around not being able to compare the other respondents’ suggestions and arguments regarding defamation on the Internet is to conduct a second set of interviews giving the interviewee a chance to debate other interviewee’s comments. This approach was used during this study.

The final qualitative technique that was considered was that of observations. There are a number of ways that observation could have been used within this research including monitoring the process of making a defamation claim or how ISPs deal with defamation claims. However, after some consideration it was decided that this technique would not be beneficial to this study. The data collected for both of these examples could be achieved during the interviews. Furthermore, as a defamation claim can take a number of years to reach court, it would be impractical to observe a claim within the time frame of this thesis.

Based on these reasons, the technique of interviews was deemed the most appropriate method of data collection. In particular, semi-structured interviews were viewed as the most appropriate form of interview. This interview style is designed to probe the interviewee with open-ended questions, which would allow them to discuss a broad78

topic such as Internet defamation. Commonly used in qualitative research, interviews are generally economical with regards to time and resources79.

2.5.2 Interviews

Justification for using this technique is highlighted by a number of authors. In The

Interview: From Structured Questions to Negotiated Text, the authors80 discuss a range of different approaches to interviewing. Although interviewing techniques are not discussed, the authors consider the overall process of interviewing as well as drawing upon the work and quotes from other qualitative researchers81.

When considering unstructured interviewing, the authors commented that it can ‘provide a greater breadth of data’82.

Quoting Marshall and Rossman, Potter comments:

‘Qualitative in-depth interviews are much more like conversations than formal, structured interviews. The research explores a few general topics to help uncover the participant’s meaning perspective, but otherwise respects how the participant frames and structures the responses.’83

“In depth interviewing is an approach that primarily uses open-ended questions, which gradually build upon and explore the interviewees responses”84

The interviews conducted in this research were kept semi-structured. Justification for this is that each experience with defamation and the Internet could be different for each ISP, content host and lawyer interviewed. Therefore, each interview had to be approached in a case-by-case manner.

Two separate lists of questions were devised. The first set of questions were aimed towards the business of an ISP or content host with regards to defamation. Question areas included:

• ISP experience with defamation.

• Adequacy of the Section 1 defence of the Defamation Act 1996 and the EC Regulations.

• ISP procedures upon being put on notice of defamatory material.

• Effect on ISP procedures following the Godfrey v Demon Internet case. • Notice and take down procedures and Freedom of Expression.

• Concern of gagging letters.

• Experience of the Pre-action protocol.

The second set of questions were addressed to legal practitioners in the area of defamation. Areas of questioning were similar to those that were used for the ISP interviews and included:

• Lawyer’s experience of defamation, both online and in print.

• Recommendations to a client in response to defamatory material (both claimant and defendant).

• Experience of the Pre-action protocol. • Concern of gagging letters.

• Adequacy of the Section 1 defence of the Defamation Act 1996 and the EC Regulations.

• Notice and take down procedures and Freedom of Expression.

• Discussion of the ISP opinions regarding the Section 1 defence of the Defamation Act 1996.

In addition to these questions, three areas of concern arose from the first interview, which were then tested in subsequent interviews. These were:

• Concern regarding Conditional Fee Agreements and defamation. • Increase of Internet libel cases.

• Overall reduction of libel claims and cases.

128 ISPs and hosting services were contacted for the first set of interviews. Most of ISPs and hosting services contact details were acquired from the Internet Services Providers' Association (ISPA) website85. Others were either acquired from personal

knowledge of their business or their company’s name was obtained during the desk research.

The ISPs and hosting services were contacted by email. Seven of the ISPs agreed to be interviewed, six of whom requested the interview be conducted over the telephone and one who preferred to be interviewed by way of emails. Three of the interviewees had in the past or were currently involved in highly publicised defamation disputes.

The remainder either did not reply or declined to be interviewed citing two main reasons. Firstly, that they did not have the resources to assist my study. Secondly, that they had limited or no experience of defamation law. The ISPA were also contacted, but were unable to grant any time to this study.

The contact details of the lawyers were sourced from the Law Society86 website. Of the 137 emails sent, 10 of the lawyers gave consent to being interviewed, however, all asked for the interview to be conducted over the telephone. The remaining eight declined to be interviewed as they could not allocate any time to assist the research or that they had limited experience in the area of defamation.

Questions for both groups were revised and edited throughout the data collection process so to improve the delivery of the questions. During the introduction of all of the interviews, interviewees were asked to give their consent to the conversation being recorded and transcribed, from which quotes would be taken and used in the report. All interviewees agreed to the interview being recorded and transcribed. However, a majority asked for their thoughts and opinions to be kept anonymous.

Consequently, all interview transcripts and quotes were kept anonymous throughout this research.

The interviewees were also made aware that they could stop or have a break from the interview at any time and that they did not have to answer any questions they did not feel comfortable answering.

In addition to the experiences and opinions of the interviewees, the interviews also opened up other potential areas of investigation and research. Further defamation cases, related associations and other relevant contacts were discovered during the interview process.

The interviewer’s role during this process was to encourage the interviewee to develop the discussion and investigate further, the experiences of the interviewee. All of the interviews began with a discussion of the interviewee’s experience dealing with defamatory material on the Internet. This starting point helped highlight how prominent this area of law was in their business. From this discussion other questions could logically be asked at appropriate points during the interview so to keep the fluidity of the conversation continuing.

Following the first set of interviews, all interviewees were contacted a subsequent time to see if they had anything to add regarding the issues listed below. This process allowed for parts of the data collected to be validated by checking for any errors or if an interviewee challenges another interviewees opinion.

The second set of questions that were put to the ISP interviewees was as follows:

A number of ideas considering potential improvements to defamation law and procedure were discussed during the interviews. These ideas were collected and discussed with other interviewees, including:

• Legal guidelines for ISPs/hosts, which offer greater clarity on how quickly they must act to remove the material and the time allowed for investigation.

• Introduction of the roles of Internet publishers into the Section 1 defence. e.g. ISPS, Hosts etc.

• The creation of a standard digital form (similar to a ‘contact us’ form) for complaints to be made directly to the ISP or host that highlight elements of the Defamation Pre-Action Protocol. Example elements include, the name of the complainant, details of the publication or broadcast, including the words complained of, date and where possible, a copy or transcript of the defamatory words. In addition, sufficient evidence that the words used were in fact inaccurate or unsupportable. This should be supported by adequate explanation to enable the defendant to appreciate why the words were inaccurate or unsupportable. Furthermore, where relevant, the words that make the complainant identifiable, in addition to what damage has been caused from the words complained of. Moreover, the complainant should also address a method of remedy so that the claim can be rectified. This would allow the

complainant and ISP to rectify the issue speedily with sufficient information to base their decisions on.

• A process that allows the ISP to seek indemnity from both the complainant and the author of the alleged defamatory material. The general idea behind this method would allow the author of the material to respond within a designated timeframe as to whether or not they would like the material to be kept online and therefore taking full responsibility for any legal consequences. Upon confirmation the ISP could then respond to the complainant on their decision and if necessary seek an indemnity from them.

The same points above were also discussed with the lawyer interviewees, in addition to the following questions/issues:

• Firstly, to ask if you have any issues regarding the multi-publication rule and the Internet.

• Secondly, if you have any experience dealing with large American corporate business, with regards to notice and takedown.

• Finally, if you are aware of any high profile personalities hiring lawyers to protect their reputation on the web by having them search for material about them.