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Online publication risks drawn into focus by French litigation



The international risks of online publishing are back in the spotlight as a result of high-profile claims against British newspapers.

Two of our newspapers were recently fined in France for privacy infringements in content on their websites.

Mirror Group Newspapers and Associated Newspapers were successfully sued in the French courts by Kylie Minogue’s ex-boyfriend over online publications about the couple’s activities in Paris earlier this year, which were accessible on websites.

Motorsport chief Max Mosley, the FIA’s President, has also launched legal action in France over online publications, suing the News of the World there for alleged defamation and invasion of privacy.

The case concerns coverage about Mr Mosley’s visits to prostitutes, which the paper reported had Nazi overtones although Mr Mosley has denied that.

A recent English libel case involving Italian magazine L’Espresso, however, shows there are limits to such international litigation.

Two companies – one based in England, the other abroad – lost their defamation claim against the magazine in respect of 200 of its printed editions and 21 website subscriptions within the jurisdiction of the English courts.

The contentious article alleged mafia involvement in the companies.

The judge dismissed the claim as an abuse of process, saying it bore “all the hallmarks of forum-shopping” against a magazine with a “minuscule circulation” in this country.

Fortunately for the magazine, he decided the foreign-based company had no reputation in England to protect, and that the English-based company was not referred to in the article.

It is perhaps interesting to note that the risks of online publication were also highlighted by the Press Complaints Commission’s latest annual report.

For the first time, the majority of PCC complaints related to online, rather than print, versions of articles.

Meanwhile, publishers accustomed to checking customers’ submitted advertisements to see if they comply with the Advertising Standards Authority’s Code would do well to familiarise themselves with new advertising regulations which came into effect on 26 May 2008.

These are the snappily-named Consumer Protection from Unfair Trading Regulations 2008 and the Business Protection from Misleading Marketing Regulations 2008, which criminalise various sharp-selling and misleading advertising practices.

Both are primarily aimed at rogue advertisers and rogue traders, but mainstream publishers and their company representatives could also potentially face criminal liability because of the way the regulations are worded.

Unfortunately, it may require a court ruling before the extent of publishers’ liability is entirely clear, but the good news is that there are various defences available, such as the “innocent publication defence”, on which publishers will be able to rely in appropriate circumstances.

In short, advertising departments need to glance through the new regulations so they are alive to the issues, and have their wits about them when reviewing submitted adverts.

Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]