The written judgment in the first High Court ruling on online publishers’ liability for user-generated content (UGC) confirms the media can relax a little about posts made to their websites.
The gist of Mr Justice Eady’s judgment in Imran Karim v Newsquest Media Group Ltd (2009) was reported on HTFP in October but the full written judgment has now been made publicly available.
It confirms that where newspapers and other online publishers are unaware of defamatory, or otherwise unlawful, UGC posts on their websites they will have a defence to a claim for damages (eg for libel) if they act quickly to remove such UGC when notified of a complaint.
The judge characterised a newspaper’s UGC comments facility as an online bulletin board and accepted it had no control over what people posted prior to receiving a complaint.
He said online publishers have a defence under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 to a claim for damages if they act reasonably quickly to take down unlawful content once notified.
Regulation 19 is often referred to as the ‘hosting’ defence.
The upshot is that, generally speaking, online publishers are likely to be in a stronger position legally if they do not pre-moderate UGC at all. By descending into the ring and moderating, they risk being held to be aware of any unlawful UGC and therefore liable as its knowing publisher.
As a rule of thumb, the wisest course is now for publishers to ignore UGC and simply respond quickly and appropriately when a complaint is received. Some have previously adopted this approach, believing the law was likely to take this route, but the legal position was uncertain until this ruling.
The case concerned a libel claim by a solicitor against Newsquest in relation to a news article and related UGC on the Croydon Guardian’s website. The article covered the solicitor’s hearing before the Law Society’s Disciplinary Tribunal.
Mr Justice Eady said the newspaper had a Regulation 19 defence in relation to the defamatory UGC posts complained of, and that the article itself was covered by absolute privilege as a court report.
He decided users of the newspaper’s website were recipients of an “information society service” (the gateway test for the Regulation 19 defence) and that the defence applied to UGC posted in response to the article.
He said: “I am quite satisfied from the evidence that this defendant (Newsquest) is indeed entitled to avail itself of this defence, because it did not have actual knowledge of unlawful activity or information until it was pointed out by the claimant.”
He added: “It is also clear that the recipient of the service was not acting under the authority or control of the service provider within the meaning of Regulation 19.”
Mr Justice Eady, often portrayed as the media’s nemesis for his rulings enlarging English privacy law, has given a ruling that strongly favours freedom of expression.
Online publishers can now confidently approach UGC in the same way as Internet Service Providers have been accustomed to dealing with UGC on the bulletin boards they host since the well-known ruling on ISPs’ liability in Godfrey v Demon Internet (1999).
Different considerations may apply where a newspaper is hosting a bulletin board or forum on a controversial topic which it is aware has, in the past, repeatedly received defamatory or otherwise unlawful UGC.
In this scenario, moderating and actively weeding out dubious content might still be the best approach to minimise risk. Claimants might try to undermine a Regulation 19 defence by arguing that from past history the online publisher must have had “actual knowledge,” or there were “facts or circumstances” from which it must have known or become aware, of the unlawful content.
Further, some publishers may also want to continue with moderation to maintain quality or brand control.
Regulation 19 only provides a defence where damages are the remedy that is being claimed. The defence is not available against a claim where, for example, an injunction is the remedy being sought.
However, Eady J’s written judgment will be widely welcomed by the media.
@hugh_d (15/12/2009 12:39:36)
But what happens if I visit a page of my own site and accidentally see a prima facie defamatory reader comment? Does that then count as moderation and make me responsible?
pestobobber (15/12/2009 14:43:39)
Depends what you do. Leave it to be complained about by somebody else then deal with it speedily. Defence in law. Delete it yourself. You are always the arbiter of what gets taken down on your site irrespective of who complains. Defence in law. Edit it to try to make it safe – you are now the publisher of it. Not recommended
Anon (22/12/2009 13:50:37)
And how does ‘made aware’ work?
Reader, at midnight, clicks ‘report this post’ and generates an automatic email to an empty office. Offending comment isn’t removed until 8am when the email is spotted.
Is the point of ‘being made aware’ at midnight or 8am?