Sheffield Wednesday Football Club¡¦s recent high profile court case against the owner of online fan forum Owlstalk, which considered the issue of when web-hosts and ISPs are liable for defamatory content posted by a third party, demonstrates that this is a question which is becoming increasingly pertinent in the digital age.
The rules governing liability for the content of online forums are contained in various pieces of legislation and case law. As a result, if you host a forum in which users post content, it can be a bit complicated trying to establish to what extent (as the host) you may be liable for certain types of content.
One of the biggest problems in hosting a discussion forum is knowing what to do when a user posts something (potentially) defamatory. This article will look at the key laws that apply, recent cases that have impacted on the intersection between data protection and libel laws, when web-hosts are potentially liable, and how they can protect themselves from cases being brought against them.
What are the key laws that apply?
The sources that need to be consulted in order to look at the potential liability of a host of an online discussion forum for defamatory content posted in the forum include:
„X centuries of case law
„X the Defamation Acts 1952 and 1996
„X the EC Directive on electronic commerce and the regulations made under it that apply in the United Kingdom.
What is a defamatory statement?
A defamatory statement can be made in relation to a company or an individual (in either case referred to as a ¡¥claimant¡¦ for the purposes of this article).
In order to be defamatory, the statement has to be one that tends to lower the claimant’s reputation in the estimation of right-thinking members of society generally.
Anything published on the Internet or via e-mail is likely to be treated as having been written and will therefore be treated as libel.
What does a claimant have to prove?
In an action for defamation, the claimant must show that the words or statements complained of:
„X are defamatory;
„X identify or refer to the claimant; and
„X are published to a third party by the person against whom the claim is being made.
Once the claimant has proved these three elements, the defendant will have a defence only if he can prove that the statement was/is true or if he can show he has the benefit of another specific defence.
The claimant does not usually have to show that he has suffered damage to his reputation.
If found to have published a defamatory statement, what are Web hosts potentially liable for?
If a web-host is found to have published a defamatory statement without a defence, the court may award any one or all of the following:
„X an injunction ¡V this prevents the defamatory remark being published (or published further)
„X general damages ¡V these compensate the claimant for the damage to reputation
„X special damages ¡V these compensate the claimant for actual financial loss suffered as a result of the publication of the statement
„X An order to pay the majority of the claimant’s costs.
How can Web hosts be responsible for material they haven¡¦t put there themselves?
As a result of the combined effect of the various pieces of law referred to at the beginning of this article, it is possible for the host of an online forum to be liable for content put onto the forum by users and not by the host.
In order to understand why this is so, we need to look at the key pieces of law separately before being able to understand their combined impact.
First, if you provide a service that consists of storing information (ie content) that is provided by the users of the service and not by you (which will often be the case if you are the host of an online forum), then as a general rule you will not be liable for damages in relation to the content (even if the content is unlawful ¡V such as when it is defamatory) provided that:
„X you were not aware of the unlawful information or of anything from which it would have been apparent to you that the information was unlawful; and
„X once you become aware that the information is unlawful or of anything from which it would be apparent to you that the information was unlawful, you act quickly to remove the information or disable access to it.
So, if you are a host, you are not generally going to be liable for damages in relation to defamatory statements posted on an online forum you are hosting, provided you didn’t know about them and that, once you do know about them, you quickly remove them or block access to them.
If you get content from others and edit it before putting it yourself onto your website, you will not be treated as a mere host as set out above and the exemption will not apply to you.
Even if all you are doing is hosting, problems quickly start to creep in once you become aware of a defamatory statement. To understand why, we need to look at how people normally become liable for making defamatory statements.
In order to be held liable for defamation, you must be a ¡¥publisher¡¦ of the defamatory statement. The definition of ¡¥publisher¡¦ includes anyone who participated in the publication of the defamatory statement.
Publishers can be split into two categories, ¡¥primary¡¦ and ¡¥secondary¡¦. A primary publisher exercises direct editorial control over the published statements (in other words, is the author or editor). A secondary publisher doesn¡¦t take an active editorial role but is still involved in making the defamatory comments available to third parties (people in the position of libraries, bookshops, newsagents and anyone hosting an online facility via which the defamatory statement was made). So, subject to the exemption from liability for hosts described above and to other exemptions we are about to come onto, it is possible for a host to be treated as a secondary publisher and to be liable for publication of a defamatory statement, even if it did not originate from the host but from a user of the host¡¦s forum.
There is, however, a specific defence which says that a person will not be treated as either the primary or secondary publisher of a defamatory statement if he is involved only:
„X in processing, making copies of, distributing or selling any electronic documents where the statement is recorded;
„X as an operator or provider of a system or service whereby a statement is made available in electronic form; or
„X 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.
These exemptions are clearly to the benefit of ISPs and other hosts of electronic content, the second one being the most relevant to forum operators. There is, however, a fly in the ointment in that in order to benefit from the defence you will have to show that you took reasonable care in operating the forum and that you did not know about any defamatory content in the forum.
If, for example, you have your attention drawn to a statement in a forum that appears to be potentially defamatory, you have three choices open to you:
„X ignore it
„X edit it so that it is no longer (in your opinion) defamatory
„X delete it or block access to it.
Assuming for the moment that the statement is, in fact, defamatory:
„X If you ignore it once you know about it then you will lose your immunity from liability as a host and will also fall outside the exemption from being a publisher. You will therefore be treated as a secondary publisher and will be liable as such for the defamatory statement.
„X If you edit it, then you will lose your immunity from liability as a host and will also fall outside the exemption from being a publisher. In fact, having edited the content, you can be viewed as a primary publisher and will be liable accordingly for the defamatory statement. Of course, this assumes that it remains defamatory after you edit it, but if you want to rely on it not being so you are going to have to be pretty confident of your ability as an editor and you will probably need to take legal advice to boot.
„X If you quickly delete it or block access to it, you should be able to take advantage both of your immunity from liability as a host and also the exemption from being a publisher.
What if I am just hosting a link to defamatory content on another website?
This scenario hasn’t been tested in court yet. However, there was a case in 1894 which involved a man sitting in a chair pointing out to passers-by a defamatory sign erected over the road. The court decided that by pointing out the sign, he had contributed to its publication. By analogy, the same principle could apply to the provider of a link, but it might depend on whether the link points to a site generally, or to specific article containing defamatory material.
How long has the claimant got to bring a claim against me for defamation?
Unless the court thinks otherwise, a claimant only has one year from the date of publication of a defamatory statement to sue.
However, a new cause of action can be brought each time a defamatory statement is published. This is particularly important in relation to forums, as each time a particular forum page is downloaded by someone browsing it, this constitutes a new publication. The problem also arises where access is given to archived information which may contain defamatory statements.
By way of illustration there was recently a case which concerned a series of articles in The Times which made allegedly defamatory statements. The articles in question had been posted and archived on The Times Web site. The newspaper argued that the claimant had to sue within a year from the date on which articles were first posted on its Web site. The Court of Appeal decided that publication happens each time the defamatory comments are accessed, not just when the articles are first posted on the website. Each hit, therefore, constitutes a fresh publication with a fresh limitation period.
What this means for forum operators, is that:
„X if your Web site has a publicly accessible archive facility for previous threads and forums; or
„X if a search engine lists one of your older threads as a hit to a search and provides a link through to it;
then you must be aware that an action for potentially defamatory statements may be brought against you long after the statement was first posted. There is a particular risk if the statement or content has been the subject of a previous complaint.
What can I do about all of this and how can I manage any potential liability?
All of the above means three things in particular for you if you host content:
„X It is wise to remove allegedly defamatory content/postings as soon as you are aware of their existence (ie have an efficient notice-and-take-down procedure).
„X You will usually only be exempt from liability if you suspend access to the allegedly defamatory posting while assessing postings for potential defamatory content.
„X If you exercise any kind of editorial control over the content of your users you are likely to be classified as an author, editor or publisher and you will be potentially liable accordingly if the content is defamatory.
There are some other practical problems, for instance:
„X What constitutes notice?
„X What type of notice must be given: is it necessary for the claimant to ask for the content to be removed, or merely sufficient that you have been informed?
„X How quickly must you react: within a business day, or within 24 hours?
The answer is that we don’t know as there has not been any guidance issued. What we suggest is that you use your common sense and act quickly.
So, in summary, what should I do?
If you are put on notice that there may be a defamatory posting on the forum that you operate, regardless of whether or not you believe it to be defamatory, you would probably be wise to remove it immediately because it is unlikely to be worth risking the consequences of allowing it to remain on the forum.
Trying to edit the posting may get you into real difficulties since it is likely to put you outside any of the defences normally available to you as a host and will leave you exposed if the edited posting remains defamatory.
Note that in taking down the potentially defamatory content, you may be in breach of the terms and conditions which you have agreed with your users, so you need to make sure that it is clear in your agreement with each user that you are allowed to do this.
Most importantly: (1) make sure you have a notice and take down policy in place if you are operating a forum; (2) act cautiously; and (3) call your lawyer when in any doubt ¡V a quick phone call could save you a lot of time and cost!
Graham Hann is a partner in Taylor Wessing’s Commercial Technology group, and specialises in advising businesses on IT projects and IT and commercial legal issues generally. Graham previously worked for Siemens: g.hann@taylorwessing.com
