Friday, January 01, 2010

UGC ruling comfort for bloggers

A landmark High Court judgement in early December offers some level of comfort to those bloggers who worry about being sued for comments left on their websites by visitors.

Our solicitors - Foot Anstey - issued a briefing note to editors shortly before Christmas and partner Tony Jaffa has agreed that I can use the briefing on this blog in case it is of help to anyone out there in the blogosphere.

The case concerned a lawyer, Imran Karim, who sued Newsquest Media Group - one of the other big publishers of regional newspapers in the UK - over an article headlined: 'Crooked solicitors spent client money on a Rolex, loose women and drink'.

Mr Karim was not happy. And he didn't like some of the comments posted by users of the newspapers' websites.

The newspaper group applied to the High Court to have the case thrown out on the grounds that Mr Karim had no chance of winning and Mr Justice Eady agreed and gave a summary judgement in favour of Newsquest.

I'm not going to go into why the article itself was ok - it was protected as a report of legal proceedings - as that is something for another day, but the interesting thing for bloggers was the decision that the newspaper was not responsible for comments left on its websites by users.

Here's what Tony says:
By his judgement, Mr Justice Eady has confirmed that web publishers who are unaware of defamatory UGC posts on their websites, have a defence to a claim for libel damages if they act quickly to remove such UGC posts as soon as they are notified that a post is the subject of a complaint.

The judgement also confirms that publishers do not need to pre-moderate or edit UGC posts on their websites to have a defence to a claim for libel damages.
And, here's the really important bit:
In fact, in purely legal terms, publishers will be better off not pre-moderating UGC at all.
The ruling is based on the Electronic Commerce (EC Directive) Regulations 2002, Regulation 19, sometimes known as the hosting defence. Here's that regulation:


19. 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.

According to Tony Jaffa the judge held:
1 the users of publishers' and newspapers' websites are recipients of an 'information society service';

2 UGC facilities on such websites are bulletin boards;

3 web publishers have no knowledge of, or control over, UGC prior to becoming aware, or being notified, of any contentious posts;

4 therefore, publishers have no liability if posts are removed as soon as a complaint is received.
So, you can sleep a little more easily now! Although, of course, there are a number of caveats and if you have lots of controversial comments on your blog, it would be worth reading both Tony's briefing and the judgement in full ... or even taking legal advice (I'm sure Tony would give you a good price if you told him you knew me!)

I just want to add two further comments. Tony hints at the first when he says that in 'purely legal terms' it might be best to avoid pre-moderation. The issue this throws up, of course, is the fact that you have a reputation to protect and if you don't pre-moderate you may well find all sorts of rubbish appearing on your site, undermining your own good name. This is a difficult one for publishers and it probably comes down to your own confidence in pre-moderating, along with the level of comments, both in terms of quantity and quality. I think lots of bloggers do moderate comments on their sites and I must admit, I tend to come down in favour of moderation on this blog.

The other point that I'd like to make is that this sort of ruling often has unintentional side effects - for example, it would be easy to see why people might remove comments from their sites as soon as they receive any complaint about them so that they can say they acted quickly, allowing them to use the hosting defence. But we sometimes receive complaints - particularly from Leicester City Council - about comments on our sites which they don't like. Of course, the fact that they don't like them, doesn't make them libellous and I usually refuse to remove them ... this ruling may increase pressure to remove comments before too much thought is given to the merit of the complaint.

Finally, I'd like to say well done to Newsquest for fighting this battle. In these difficult times, it often easier to give in than to challenge those who attempt to use the law to control the press. If companies like my own, Northcliffe, and Newsquest don't stand up to be counted, it's unlikely that anybody else will. So, thanks, to whoever made the decision at Newsquest.