The English High Court has held that a website owner can potentially be held liable for defamatory statements which are published on a website it provides a link to, even if their website does not contain any such defamatory postings itself.

The claimant in the case raised an action for defamation in respect of comments posted on the richarddawkins.net forum, and on the reviews section of the Amazon website. The defendants were the poster of the comments, Professor Richard Dawkins, The Richard Dawkins Foundation, and Amazon. All but the poster of the comments applied to the court for a ruling that they were not responsible for the comments and that the action against them should not proceed to trial.

The Foundation argued that it could not be liable as richarddawkins.net was operated by a US company. Whilst this is true, it became apparent that the Foundation operates richarddawkins.org. When the “Home” button on the .org website is clicked, the page automatically forwards to the .net site (which allows access to the forum) without users being notified of the change.

The judge said that the law on hyperlinks is uncertain and liability must be determined by the specific facts and circumstances of the case. In this case, the close association between the websites, together with the fact that the link was concealed and was made by clicking the “Home” button were important factors. As a result, the judge held that it was appropriate for the question of liability to be decided at trial, meaning the Foundation may be found liable for the posts.

Professor Dawkins also failed to convince the court to strike out the case made against him personally. He was one of the four administrators of the US site, and had access to the forum. An individual may become personally liable for a comment made on a website operated by a company if they play a sufficient role in its publication. As the role of Professor Dawkins was disputed, the judge thought further discussion at a trial was appropriate.

Amazon’s defence was based on the fact that it is not a “commercial publisher” under the terms of the Defamation Act. The court agreed with this as it considered Amazon’s primary business in this context to be the sale of books, and not publication. The court also held that Amazon’s role in the publication was purely an automated process.

Amazon also argued that, as the claimant did not inform Amazon of the defamatory comments via its online form, it was not aware that the postings were potentially defamatory. Under the E-Commerce Regulations, a service provider cannot be liable for damages if it does not have actual knowledge of the unlawful activity. As a result of these two arguments, Amazon was successful in convincing the court to dismiss the case against it.

It should be noted that the claimant was unrepresented at the hearing, so the judgement should be treated with caution. Despite the fact the judgement does not state that providing a link to another website will always lead to potential liability for defamatory statements, website owners should be vigilant, particularly where they provide a link to a closely connected website.

It will be interesting to see the outcome of the trial and where the line is drawn between a website being considered a mere conduit to another website and being potentially liable for its content.

Related links: http://www.bailii.org/ew/cases/EWHC/QB/2012/B3.html