McNae gets to grips with online legal minefield

The new edition of McNae says that journalists working online confront, in general, the same legal problems as those whose stories and pictures appear in print or in broadcast programmes. Why, then, is a new, additional chapter necessary?

The answer is that the variety of forms in which online journalism appears ensures that the application of the law sometimes requires a cautious and perhaps novel approach.

All cub reporters boasting a pass in their NCTJ preliminary law examinations know that ‘every repetition of a libel is a fresh publication and creates a fresh cause of action'(the repetition rule), and they recognise the implications in their daily work.

But the rule is sometimes forgotten at higher levels, with expensive results.

A newspaper or magazine with an associated website is normally liable for defamatory statements on that site. In 1999, the Russian businessman Grigori Loutchansky successfully sued The Times for two articles that appeared in the paper in September and October that year reporting he had been involved in criminal activities. But the stories remained on the paper’s archive, available on the internet, and the following year, he sued again.

The court ruled that, under the repetition rule, every time an article in an archive is accessed, this amounts to a new publication and can give rise to a new action.

As a result, lawyers strongly advised that newspapers settling libel actions arising from stories in the paper should check that the story is deleted from the archive website.

Nevertheless, last year a businessman won a second libel damages payout from the Sunday Telegraph over the same story, because the newspaper left the piece accessible through its website, ‘as the result of an oversight”.

Another area in which journalists need to be alert over online publications concerns electronic forums, bulletin boards, chatrooms, and other sites in which organisations invite user-generated content – postings from people not employed by the organisation. The law normally regards the organisation to be the ‘publisher’of content contained in such sites and responsible for any defamatory statements.

Some of these sites attract a huge volume of calls. Mumsnet, a parenting website that settled a libel action last month, claims to be visited by 250,000 mothers every month and to receive as many as 70,000 postings in a day, making it ‘difficult’for them to be monitored.

When sued, online journalists and the organisations they work for rely in general on the same defences as they would have used if the stories appeared in print or in a broadcast – principally justification (truth), fair comment, and privilege – but none may be available when the defamatory statement was made on such a site.

In these circumstances, the organisation may be able to rely on the ‘innocent dissemination’protection provided by Section 1 of the Defamation Act 1996, which has enabled broadcasters to defend themselves if sued for defamatory comments blurted out by interviewees in unscripted programmes.

The media organisation will have to show, among other things, it was not the ‘author, editor or publisher’of the statement complained of and that it took reasonable care in relation to its publication. To show that, it will have to remove the statement, and do so promptly.

It seems, therefore, that organisations have no defence under Section 1 if they continue to host material after they have received notice it is defamatory, even if they have good reason to believe it is true or in some other way defensible.

Some lawyers take the view that this restriction on freedom of expression is disproportionate, and might not survive a challenge under the Human Rights Act. Be that as it may, McNae advises: ‘If an organisation receives a complaint about the content, and believes it would have a defence under Section 1, it will quickly have to decide whether to remove the item and rely on that defence or to defend the story.’

Mumsnet did not take this course. Childcare ‘guru’Gina Ford complained that statements made about her on the site’s discussion boards – including: ‘She straps babies to rockets and fires them into South Lebanon’– were defamatory. But Mumsnet did not agree and became involved in a long-running dispute over this and other complex issues, before finally apologising to Ford, removing the statements complained of, and contributing ‘a five-figure sum’to her legal costs. Justine Roberts of Mumsnet explained in Press Gazette (25 May) that, ‘given the costs in time and money”, Mumsnet was not prepared to go to court to establish the legal position.

As Axegrinder reported in Press Gazette, following the case, freedom of information campaigner Heather Brooke wrote in The Times condemning the ease with which ‘rich, litigious bullies’could get stories taken down from websites – but after a complaint, the piece was removed from the paper’s website ‘while they deal with the complaint”.

Online journalists have to be equally alert in other problem areas – in particular copyright, contempt of court and privacy.

A lecturer consulted by the NCTJ said the biggest problem trainee reporters tended to face was not recognising the dangers with photos that they found, and downloaded, from other sites. ‘I’m always amazed how many reporters seem to think that the web is a help-yourself zone,’he said.

The lecturer said the biggest danger with contempt seemed to arise from news editors not telling web editors when arrests had been made, meaning that police appeals and photos were still appearing on the website after people had been charged.

And privacy? A weekly newspaper editor illustrated the point that online work sometimes presents problems over privacy and data protection in a more acute form than is generally experienced by print journalists.

The editor said: ‘A video that someone has offered the site as a ‘jolly party picture’ may show someone behaving disgracefully at a private party.’The test of whether the party-goer can sue, claiming infringement of privacy, would be whether he or she had a ‘reasonable expectation of privacy in respect of the information/acts”.

Good luck to all online journalists, I say. They need it.

• McNae is published by Oxford

University Press, priced £18.99

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