Turn a blind eye to your online postbag at your peril

Lord Robertson recently collected £25,000, his legal costs, and an apology from the Sunday Herald as a result of a libellous posting on its website. All this despite the fact that: (

a) the posting was made by a reader,

(b) the newspaper did not vet such postings and had no idea it was there,

and (c) it was removed as soon as Lord Robertson complained.

Ah ha, I hear the legally inclined say, but what about Section 1 of the Defamation Act 1996? The so-called internet defence caused quite a stir when it came into force a few years ago and for the first time put on the statute book a defence of innocent dissemination.

Provided they acted promptly to remove the offending material when put on notice of its existence, it was said, those hosting online discussion forums would not be liable for their content. Sadly,matters proved not to be quite so straightforward.

For a start, the defence is not available to anybody who has exercised “editorial control” over thematerial, for example, by vetting contributions before they are posted. As Campbell Deane of Bannatyne Kirkwood France, who acted for Lord Robertson, explains: “In this case, the newspaper’s position was that it had not checked contributions before they were posted, despite the fact that in the printed edition it had invited readers to write to ‘our online editor’ with their contributions”.

It would appear that the online editor had been a figment of the sub-editor’s imagination and that in fact all such contributions had been automatically uploaded onto the newspaper’s website.

However, that is not an end to it. The website operator cannot simply turn a Nelsonian eye to such postings. To be able to rely on the section 1 defence it must also be able to demonstrate that it has taken “reasonable care”, and could not reasonably have known that anything it did “caused or contributed to publication of a defamatory statement”.

Doing enough to satisfy the reasonable care requirement, while not straying into the territory of exercising editorial control, can be something of a tightrope act. But it might, for example, include establishing user rules governing the content of contributions. It might even stretch to monitoring contributions after they have been posted and deleting the worst offenders.

In addition, in this case, the newspaper had invited readers to express their views on the fact that documents relating to the inquiry into the Dunblanemassacre would not bemade public for 100 years. Arguably, inviting comment on a contentious matter such as this could be seen as contributing to publication of a (not “the”) defamatory (not “libellous”) statement.

Moreover, there is yet another difficulty -for newspapers in particular – with the Section 1 defence. Also excluded from relying on the defence is a “commercial publisher” of the statement in question. A commercial publisher is defined as, “a person whose business is issuingmaterial to the public, or a section of the public, who issues material containing the statement in the course of that business”. Any newspaper group (as opposed to, say, an ISP) is therefore likely to be a commercial publisher. The only question is whether the material in question was issued “in the course of that business”.

Quite a lot could therefore turn on how the website in question is operated. For example, if it is subscriber access only, then it is providing a revenue streamand the statement is probably being issued in the course of the newspaper’s business. Even if access is free to users, the newspaper may be selling banner advertising on the website, or it may in any event be said by a claimant that the website forms part of the marketing activity of the business.

There were other particular factors in the Sunday Herald case, such as the fact that unfortunately the newspaper subsequently repeated the libel in the printed edition. But the moral of the story is clear: any newspaper group which gives the public unfettered access to its virtual columns does so at its peril.

David Engel is a partner in the media & internet litigation group at Addleshaw Goddard

David Engel

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