In Imran Karim v Newsquest Media Group Ltd [2009] EWHC 3205 (QB), Mr Justice Eady granted an application to strike out a libel claim brought by an ex-solicitor against Newsquest. He held that an article published online was absolutely privileged as a fair, accurate and contemporaneous report of legal proceedings, namely Law Society disciplinary proceedings. He also held that Newsquest had a defence based on the hosting safe harbour in the E-commerce Regulations in relation to user comments posted to bulletin boards on the website.

BACKGROUND

The Claimant, Imran Karim, brought an action complaining of an article and related comments, entitled “Crooked solicitors spent client money on a Rolex, loose women and drink”, published on the Croydon Guardian website in June 2008. The article reported on a hearing held in June 2008 before the Disciplinary Tribunal of the Law Society at which Mr Karim stood accused alongside his mother and sister of mishandling client funds.

The Tribunal gave detailed reasons for its decision in a judgment handed down in September 2008, although the fact that Mr Karim was to be struck off was announced at the end of the hearing in June. The judgment revealed that the Karims were found to have stolen around £860,000 of clients’ money that they had used to fund “lavish lifestyles”. Although the reasons were handed down in September, some three months after the offending article was published, as Eady J acknowledged, their content tended to confirm the accuracy of the report of the proceedings as published on the websites. Without making prior contact with Newsquest, Mr Karim issued proceedings on 29 January 2009. As soon as Newsquest received the claim on 5 February 2009 it removed both the articles complained of and the related user comments.

APPLICATION TO STRIKE OUT

Newsquest applied to strike out the claim and/or to obtain summary judgment. First it contended that the article itself was absolutely privileged being a fair and accurate report of legal proceedings that was published contemporaneously, within the meaning of Section 14 of the Defamation Act 1996. Secondly, it argued that it had a defence under Regulation 19 of the Ecommerce Regulations 2002 which provides as follows:

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 or (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.

DECISION

Eady J was satisfied that the article was substantially accurate in its coverage of the Tribunal proceedings. The article was first published on 6 June 2008 on the Croydon Guardian website and was copied automatically onto a number of other websites. In those circumstances the publication clearly qualified as contemporaneous. Newsquest had also satisfied, for the purposes of the defence, the requirement that the article was “substantially accurate” (see for example Kimber v Press Association [1893] 1 QB 65). Whilst the evidence was rather one sided, this was inevitable in view of the fact that neither Mr Karim nor his co-accused took part in the proceedings.

As regards the user comments, Eady J was satisfied from the evidence that Newsquest was entitled to avail itself of the defence under Regulation 19 because it did not have actual knowledge of unlawful activity or information until it was pointed out by Mr Karim in January 2009 and whilst Newsquest did not necessarily accept that the activity was unlawful in publishing the article, it was not aware of any complaint until that time. In any event, the material was taken down as soon as the nature of the complaint reached Newsquest. It was 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.

In conclusion, both in relation to the original article itself and in relation to the user comments, Mr Karim was unlikely to succeed with his claim. Applying the test in Alexander v Arts Council of Wales [2001] 1 WLR 1840, Mr Karim had no realistic prospect of succeeding on either of his claims and a jury would be perverse if they were to uphold either of them.

COMMENT

Newsquest's head of legal, Simon Westrop, is quoted in various quarters as expressing his gratitude to Mr Justice Eady for a very clear judgment that is “supportive of free expression on the internet”. The decision will indeed provide comfort for the media in its application of the hosting defence to unmoderated bulletin boards, as long as the service provider acts expeditiously to remove offending content when alerted to its presence.