Website-law.co.uk

User-generated content can be a real headache for website operators.   One particular risk associated with such content is defamation; however there is a special defence to libel actions which may assist a website operator who is accused of publishing defamatory content submitted by users.

See my most on “Dealing with defamatory posts on your website or blog” for background.

Section 1(1) of the Defamation Act 1996 provides:

“In defamation proceedings a person has a defence if he shows that— (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

When the owner of a website hosting user-generated content is accused of publishing a libel contained in such content, Section 1 is usually the first point of call.

Authors, editors and publishers

The first point to check is whether the defendant or potential defendant is an author, editor or publisher.  These terms are given a special meaning in Section 1(2):

• “author” means the originator of the statement, but does not include a person who did not intend that his statement be published at all;

• “editor” means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it; and

• “publisher” means a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.

Notwithstanding these definitions, there are some categories of person who will never be considered an author, editor or publisher.  Of particular interest to website owners are Sections 1(3)(c) and (1)(3)(e) of the Act:

“A person shall not be considered the author, editor or publisher of a statement if he is only involved— … (c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form; … (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.”

In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement.”

Reasonable care and knowledge/belief

In addition to not being an author, editor or publisher, a person wishing to rely upon the Section 1 defence must show that he or she (or it) took reasonable care in relation to the publication, and did not did not know, and had no reason to believe, that what he or she (or it) did caused or contributed to the publication of a defamatory statement.

In this connection, Section 1(5) provides:

“In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to— (a) the extent of his responsibility for the content of the statement or the decision to publish it, (b) the nature or circumstances of the publication, and (c) the previous conduct or character of the author, editor or publisher.”

Analysis

Section 1 leaves web publishers in an dilemma.  They must show they took reasonable care in relation to a publication.  However, in some circumstances reasonable care may require prior review: and prior review may lead to the web publisher being considered to be an “editor” and therefore not entitled to take advantage of the defence.

In circumstances where reasonable care does not require prior review etc of user content (assuming there are such circumstances!) a defendant should have a better chance of being able to rely upon this defence in relation to user-generated content if:

• the defendant does not engage in prior review, or prior editing, of the user generated content;

• the website expressly disclaims responsibility for the content on the part of the defendant;

• the website includes a procedure whereby defamatory material can be notified to the defendant ex post facto for deletion where appropriate;

• as the defendant becomes aware of potentially defamatory content, that content is quickly removed.

One of the many legal risks facing you as a web publisher comes from the law of libel: as publisher, you may be liable not only for your own writings, but also for the defamatory comments that users make on your website.

Identifying defamatory posts

How can you identify whether a particular post is defamatory or not?  Over the years the courts have put forward a lot of different tests.  A defamatory publication has been defined as:

a publication “lowering the plaintiff in the estimation of right-thinking people generally” (Sim v Stretch);

“a publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule.” (Cropp v. Tilney);

a publication tending to make a person be “shunned and avoided”  (Youssoupoff v. MGM Pictures).

A wide range of publications may be defamatory – for example, allegations that a person is a thief or a liar, an idiot or fool, corrupt, immoral, an adulterer, carrying a disease, bankrupt or unable to pay his or her debts.

So, any comment on your website that may have a negative effect on a person’s reputation (other than a trivial effect) could be problematic.

Standard defences

Of course, there are range of defences which may be available to web publishers in respect of third party defamatory comments.

Probably the most important defence is justification (aka truth).  If a defendant can prove that a publication is true, then the defendant will have a complete defence to a libel action.  However, it can be difficult, not to mention expensive, to prove the truth of an allegation.  As a web publisher, then, you should be wary of relying upon a justification defence.

The defence of “fair comment” is closely related to justification.  This defence may be available where the offending statement is a statement of comment rather than fact, is based upon facts which can be proven to be true, and is made in good faith, without malice, on a matter of public interest.  Again, a web publisher will often be in a poor position to assess the applicability of a fair comment defence in relation to a statement made by a website user.

In addition there is a special public interest defence (sometimes called Reynolds-style privilege) which could in principle be applicable.  However, the scope of this defence is uncertain, and it is not entirely clear how it may apply to website forum or blog comments.

In summary, a web publisher should only rely upon one of the standard defences to a libel action where the applicability of the defence is clear (e.g. in the case of an allegation of criminal behaviour, a conviction has been obtained).

Special defences

As well as the standard libel defences, there are special defences under the Ecommerce Directive and the Defamation Act 1996 which may protect web publishers.  I will focus here upon the latter defence.

Section 1(1) of the Defamation Act 1996 provides that “In defamation proceedings a person has a defence if he shows that (a) he was not the author, editor or publisher of the statement complained of, (b) he took reasonable care in relation to its publication, and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement”.

This defence should protect a web publisher from defamatory user comments providing the publisher has taken “reasonable care” and has no involvement with or knowledge of the statement.

“Reasonable care” may include having terms of use for the forum/comments section of the site which prohibit defamatory posts.

In any event, you should act promptly to remove defamatory posts when you become aware of them.

Risk assessment

Of course, some user comments are more risky than others.  E.g. a statement on your widely-read political blog that an litigious MP has takes bribes is more risky, by far, than a statement on a blog read only by your friends that your ex is ugly.

The internet would be a smaller place, in more ways than one, if all formally defamatory material was suddenly deleted.