UK Law: Slander, Libel and Defamation

A new guide to the libel laws for bloggers has just been published.

The guide, entitled So you've had a threatening letter. What can you do? , is published by Sense About Science in association with Index on Censorship, English PEN, the Media Legal Defence Initiative, the Association of British Science Writers and the World Federation of Science Journalists.

To coincide with the guide's publication, Sense About Science is making available a summary of the effects of the English libel laws on bloggers, drawn from cases that have come to attention since the start of the Libel Reform Campaign and from the recent survey of bloggers. The summary identifies the particular ways in which online forums are affected by the current laws, notably:

• the individual and non-professional character of much online writing, and therefore the more pronounced inequality of arms, particularly where people are writing about companies, institutions and products;
• related to the above, the relative lack of familiarity with libel law and access to advice about handling complaints;
• the liability of ISPs, leading to material being removed without consultation with authors;
• and the vulnerability to legal action arising from the international availability of Internet material, and it being possible to republish old material by downloading it.

Reform of English libel law has been promised, and if campaigners are successful, then changes that will give better defences to online publishers and writers may come into force in 2012.

This leaflet is certainly not a substitute for legal advice, but it does provide information which other bloggers and writers who have experienced libel threats say they wished they had known at the outset.

A blog owner can avoid liability for user-generated content that appears on his site without being checked or moderated, the High Court has ruled. But fixing the spelling or grammar in users' posts could lose him that protection, it said.

The Court ruled that the operator of blogging site Labourhome.org could not have a libel case struck out because previous comments had been moderated.

The E-commerce Directive exempts information society service providers, such as ISPs, web hosts and search engines, from liability for the information they store or pass on to users as long as they are not involved in its creation or editing and as long as they remove it quickly once notified that it breaks the law.

Alex Hilton claimed in his defence against a libel charge that, though he ran the site, he did not edit or vet the articles and should qualify for the same safe harbour that was granted to search engines or ISPs. The ruling

There is no reason in principle why the operation of a chat room should be incapable of falling within the definition of the provision of an information society service consisting of the storage of information, said Mr Justice Stadlen in his ruling.

However the judge found that Hilton exercised some editorial control on parts of the website and in particular on the homepage . From time to time Mr Hilton considered whether entries appearing on the 'Recommended' and 'Recent Blogs' lists on the homepage were suitable for increasing to a more prominent position, said Mr Justice Stadlen. Upon promotion far more detail was provided about each post on the homepage including the date, the time of the post and a preview of part of the post comprising anything from a couple of lines to several paragraphs, pictures and video clips.

These activities, said Mr Justice Stadlen, went beyond mere storage so that Regulation 19 immunity would not be available in respect of liability for defamatory words appearing on the homepage . Mr Justice Stadlen said that even to fix the spelling in a post could cost the host the protection of Regulation 19.

Struan Robertson, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM, said that the ruling serves as a reminder of the risks in moderating user-generated content.

Many sites apply some form of moderation to all user contributions for reasons of quality control, whether that's before or after publication. This ruling just shows how dangerous that is and how narrow the safe harbour may be . Even an attempt to filter for profanities or comment spam, if done manually, involves a risk for the publisher. If you want to be sure that you're not liable for what your users say, the judge is basically saying you need to ignore user contributions completely until you get a complaint.

The High Court has upheld the publisher's right under the E-Commerce Regulations not to be responsible for user comments until informed of them.

A newspaper report about a struck-off solicitor appeared on the websites of a number of titles belonging to regional newspaper publisher Newsquest, though not in any print editions. The article attracted some comments on a bulletin board attached to it.

Some months after the publication of the article, the struck-off solicitor, Imran Karim, filed a libel suit against Newsquest, which took the article and the comments about it down.

The publisher argued in Court that it could have no libel liability for the user comments because it had taken them down as soon as it received a complaint about them. The E-Commerce Regulations, which implement the EU's E-Commerce Directive, give online publishers immunity from liability for unlawful material that they host but don't produce, so long as they take action when informed about it.

The Regulations say:

Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where - (a) the service provider -
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful;
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information, and (b) the recipient of the service was not acting under the authority or the control of the service provider.

Mr Justice Eady agreed with Newsquest. It seems to me … that [Newsquest] is entitled to rely upon that defence, he said. He granted Newsquest's request for a summary judgment in its favour rather than a full trial. The High Court ruled that there was no case to answer once Newsquest had established its immunity.

Google is not the publisher of defamatory words that appear in its search results, the High Court has ruled. Even when Google had been told that its results contained libellous words, it was not liable as a publisher, said Mr Justice Eady.

The search giant's US and UK operations were sued in England by a London-based training business over comments about its distance learning courses that appeared in the forum of a US website. The comments were said to be defamatory and an excerpt from them could be found in Google's search results.

Metropolitan International Schools Ltd (MIS) runs distance learning courses in games development under the name 'Train2Game'.

In addition to suing Google it is also suing US company Designtechnica Corporation, which runs reviews website Digital Trends. The user forums on that site contained a thread that comprised 146 postings across 15 pages, calling the Train2Game courses nothing more than a scam .

MIS said that when it searched for the term "Train2Game" at Google.co.uk and Google.com, results for the Train2Game thread were returned as the third and fourth results for a period of three weeks preceding the date of its lawsuit. They included the snippet of text: Train2Game new SCAM for Scheidegger . MIS used to trade as Scheidegger MIS and it said that this snippet of text was defamatory.

Google argued that its UK operation, Google UK Ltd, should not be a party to the action because: its employees do not have access to any of the technology used to operate and control google.com and google.co.uk which are owned and operated by [Google Inc].

Google said that Google Inc. should be sued in California, not England. But even if England is the proper forum, it argued, Google has no responsibility for the words complained of, and therefore there is no reasonable prospect of success which is a requirement of rules on serving lawsuits outside the court's jurisdiction.

The appropriate question here, perhaps, is whether [Google Inc.] should be regarded as a mere facilitator in respect of the publication of the 'snippet' and whether, in particular, that would remain a proper interpretation even after the date of notification, wrote Mr Justice Eady.

He concluded that Google was a mere facilitator. The Bunt case, also heard by Mr Justice Eady, confirmed that mere facilitators, like telephone carriers, are generally not liable for defamatory content.

Freedom of expression in the UK is not enshrined in law, so bloggers do not have the legal right to say whatever they like.

Under UK law, bloggers do not have the right to remain anonymous and are treated the same as professional journalists or publishers. As a result, bloggers must take care with anything they write about a person or company in an accusatory way.

To defame someone means: To lower the estimation of a person in the eyes of right thinking members of society generally. Even if the words damage a person in the eyes of a section of society or the community, they are not defamatory unless they amount to a disparagement of the reputation in the eyes of right-thinking people generally.

Alongside defamation, the other areas of liability for bloggers are breach of copyright, trade mark infringement, disclosure of confidential details, and types of expression (which are criminalised, like inciting racist violence).

The other main areas of potential liability if you upload content to your own website are:

• Contempt of Court - talking too much about an ongoing trial
• Terrorism Act 2006 - inciting, encouraging or supporting terrorism
• Racial and Religious Hatred Act 2006 - inciting racial hatred

If a reader takes issue with content you have uploaded to your website, the first you are likely to hear of it is via a letter or e-mail requesting that the content be amended or deleted. Theoretically, bloggers must comply with laws all over the world, but the land where your content is consumed is the most important. Putting a ‘terms of use’ notice spelling out if you read this blog you agree to be bound by the law of… (your home country) can help.

For bloggers, who often populate their web-pages with links, a likely legal challenge stems from the popular process of ‘making available.’ Under copyright law, bloggers can face action for simply linking to a site that infringes someone else’s copyright.

Using a company logo in a blog post can cause problems, even if permission has been granted by the company, or the logo was taken from an ‘Images available for use’ section. Typically, trouble ensues if the company dislikes the content their logo is posted with, and may lead to accusations of dilution of their brand, or unlawful usage of a trademark.

Republishing a libel is the same as publishing it in the UK, unlike in the US. However if you are publishing content penned by another author, give due acknowledgement, and clearly label your content separately to other people’s.

Media sites which ask readers to comment on news stories are at greater risk of bearing responsibility for those comments than for comments in online forums or discussion groups, leading web moderators have warned.

It is generally believed that a web publisher who does not pre-screen user comments is not liable for libellous or otherwise unlawful comments because they had no editorial involvement in them.

Sites which pre-screen all comments are generally deemed to share responsibility with the poster because they have chosen to publish any comments that appear.

But one moderating veteran has said that when unscreened comments appear under news stories the publishers of the site could be liable for them.

Many lawyers I've spoken to now view the invitation of content – so if you have a comments section at the end of an article on a newspaper site – they view that as inviting comment and therefore you are responsible for it and therefore you probably want to consider pre-moderating all the content that goes there, said Danny Dagan, a moderation consultant who has helped establish online communities for The Sun newspaper.

Dominic Sparkes is operations director at Tempero, a moderation firm said that a recent judgment in the UK by Mr Justice Eady might change that. The ruling said that comments on bulletin boards and online discussion groups are more like slander than libel because they are more informal.

Mr Justice Eady had written in that ruling: [Bulletin board posts] are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out. Those who participate know this and expect a certain amount of repartee or 'give and take'.

When considered in the context of defamation law, therefore, communications of this kind are much more akin to slanders (this cause of action being nowadays relatively rare) than to the usual, more permanent kind of communications found in libel actions.