Herbert Smith LLP recently acted on the first case to reach the English High Court involving a defamatory blog (internet jargon for web logs of people’s thoughts on a particular topic).
Whilst the claim was settled with no admission of liability and with a formal acknowledgement that the claimant was not pursuing his complaint that Herbert Smith’s clients were personally liable, the case raised questions about the scope of blogging and other forms of online communication.
An increasing number of businesses allow and even encourage customers to communicate with each other through their websites. This is seen by many as a key marketing tool but does give rise to the risk of users posting negative or defamatory views about the business, it’s goods or services or matters entirely unrelated to that business. The question is therefore whether the business would be liable in such circumstances.
In the UK, a libel claim arises where there has been publication of defamatory material in writing. Not only is the author responsible but those participating in the publication are also potentially liable. Although only passively facilitating publication does not attract liability, an Internet Service Provider (ISP) or other entity may be a participant in an internet publication if its role is found to be more prominent. In this context, the liability of ISPs, and by analogy, other entities, such as the business that operates the website, will depend upon the availability of a defence. The defence most likely to be available is that contained in the Defamation Act 1996. A business would have to show (i) that it was not the “author, editor or publisher”, (ii) that it took reasonable care in relation to the publication, and (iii) that it did not know and had no reason to believe, that what it did caused or contributed to the publication of the defamatory material. The Electronic Commerce (EC Directive) Regulations 2002 provide similar protection to that contained in the Defamation Act 1996 in respect to those hosting websites.
- they should make clear that use of the forum for illegal or unlawful purposes or to post defamatory or inappropriate content, or material that is not their own, is prohibited;
- users could be required to warrant that postings are their own and are not defamatory or unlawful (an indemnity could also be sought but would be difficult to enforce); and
- the right to remove any material should be expressly reserved.
Businesses with websites that permit the posting of third party content should ensure that they have effective notice and takedown procedures in place. It’s also worth making clear to anyone accessing the site that the statements are not those of the business itself. Finally, the degree of freedom for users to initiate new discussion topics without prior moderation should be carefully considered.