Nato Secretary General Lord Robertson is reported to be bringing a libel claim in Scotland against the Sunday Herald over comments posted on the paper’s website.
The comments were posted after the Sunday Herald sought contributions to an online discussion about the announcement that official documents relating to the Dunblane massacre would remain classified for 100 years. One contributor accused Robertson of using his influence to force the police to disregard concerns they had about Dunblane killer Thomas Hamilton.
When Robertson complained about the messages, they were removed. However, they had remained on the website for around three weeks and, the Sunday Herald accepts, would have been seen by hundreds of people.
Online publishers such as the Sunday Herald may benefit from the defence to defamation claims provided by section 1 of the Defamation Act 1996. Under section 1, innocent disseminators of material, including over the internet, have a defence to a libel claim provided that they are, first, not the author, editor or publisher (in the sense defined by the act) of the statement and, secondly, provided that they took reasonable care in relation to its publication and had no reason to believe that they had caused or contributed to its publication.
The English Court of Appeal made clear in the 1999 case of Godfrey v Demon Internet that an online publisher is very unlikely to be able to rely on the section 1 defence if it fails to remove offending material once it becomes aware of it.
What Robertson’s action touches on, however, is a much knottier question; namely, in what circumstances can an online publisher be liable for material posted by third parties of which it is not yet aware? At present, there is a lack of judicial guidance, which means that the publishers of online newspapers face a dilemma: what steps, if any, should they take to prevent defamatory material being posted? If an online newspaper edits or scrutinises postings before publishing them, it risks being branded an editor of the material, which would take it outside the scope of the section 1 defence altogether.
However, if a newspaper invites people to contribute to discussion boards, particularly on sensitive or controversial matters, without subjecting the postings to any scrutiny, then arguably it is failing to take reasonable care (after all, compared with a pure ISP, a newspaper is more likely to be seen as actively seeking contributions on controversial topics). The result, again, could be that the section 1 defence is lost.
It appears to be a Catch 22 situation in which online newspapers risk being damned if they do and damned if they don’t.
Given the narrow compass of the section 1 defence, online newspapers need clear guidance so that, in dealing with third-party contributions, they can act so as best to ensure that they benefit from section 1.
David Attfield is a solicitor in the technology, media and communications department at Lovells
by David Attfield