Max Mosley was recently awarded £60,000 for misuse of private information concerning his much-publicised sado-masochistic activities. The intrusion suffered as a result of a two-page spread by The News of the World was greatly aggravated by a short video of the activities that appeared on The News of the World Web site and which – by the time of the trial – had been seen by over 3 million Internet users on Web sites such as YouTube. It was the rapid and extensive spread of this video which prevented Mr Mosley from obtaining an injunction at the interim stage to stop its further circulation. Mr Justice Eady held that such an injunction would have been futile (see Mosley v News Group Newspapers Limited [2008] EWHC 1777 (QB)).
In April 2008, the long running case of Gentoo Group Limited & Peter Walls v Baines & Others [2008] EWHC 627 (QB) was finally brought to a close when two of the defendants, John Finn and Pallion Housing Limited, agreed to pay record Internet libel damages of £100,000 to Peter Walls, the Chief Executive of the North East housing provider, Gentoo Group. Mr Walls had been the victim of a sustained and vitriolic campaign of libel and harassment on the Internet for over two years.
In July, a cameraman was ordered to pay £22,000 damages for libel and misuse of private information to his former school friend, Mathew Firsht, and his company Applause Store Productions Limited, after being found responsible for creating a false and defamatory profile in his name on Facebook (see Applause Store Productions Limited & Anr v Raphael [2008] EWHC 1781 (QB)).
The damages awards in these cases show that the Internet is now every bit as part of our lives as newspapers and every bit as capable, if not more so, of damaging reputations of companies and individuals. So is it time for the Internet to fall into line and be subjected to regulation? Or is it now so large and multi-jurisdictional as to make any attempt at regulation futile?
The Current Predicament
The Gentoo case concerned a torrent of malicious, unpleasant and anonymous libel and harassment on the Internet directed at various persons associated with Gentoo Group (formerly Sunderland Housing Group) over a period of two years at the hands of an organisation calling itself ‘Dads Place’. This group of individuals and a company used an anonymous Web site, a discussion forum, leaflets, and stickers to mount its campaign and Peter Walls in particular was singled out and accused of various serious allegations, including corruption and nepotism, all completely false.
The Firsht case concerned private and defamatory material that appeared on a fake profile and a group called ‘Has Mathew Firsht lied to you?…’ on Facebook. The profiles were on Facebook for a little over two weeks before they were taken down but that was sufficient time, held the judge, for them to be read by a substantial two figure number of people, particularly due to the practice of Facebook users of searching for the names of their friends and colleagues.
The Gentoo and Firsht cases are just two examples of the many companies and individuals that are now being targeted by the users of unregulated Web sites and blogs, who often disregard the laws of libel and privacy. Whereas newspapers and television companies take great care over what they publish, due to the threat of being sued, bloggers and anonymous Web site owners usually do not have the deep pockets of the traditional media. Consequently, they are rarely worth suing even if they can be identified.
It is a serious problem. Whilst there are now clever technical and legal means available to trace anonymous users of the Internet, there is still no shortage of disgruntled employees, self-proclaimed journalists, aggrieved customers, and others setting up Web sites, blogs and discussion forums to vent their anger without providing any contact details or mechanism for dealing with complaints. All they need to do is find an ISP (usually overseas) to host the Web site at minimal cost and away they go. If a complaint is made to the hosting ISP and the ISP removes the material in question, the owner of the Web site simply needs to find another ISP. And there is no shortage of hosting ISPs who will not ask too many questions about what the Web site is intended to be used for or even ask for proof of identification of the Web site owner.
In contrast, the Internet continues to grow as a rich source of legitimate and trustworthy news sources run by reputable, commercial organisations. In addition to providing increasingly sophisticated Web sites, many commercial and news organisations also provide discussion forums on their Web sites as a way of building up goodwill with their readers and customers. For example, in addition to reading their daily newspapers, readers of national newspapers can also now get breaking news on the newspaper’s Web site and contribute to an online discussion with other readers. However, whilst the letters pages of newspapers will receive the usual scrutiny from experienced journalists and libel lawyers, the same cannot be said for the all postings on their online discussion forums. In respect of postings on its discussion forum, newspapers do not act as editors but intermediaries and have to rely on robust notice and take-down procedures to avoid being potentially liable for defamatory postings made by forum users.
The case of Sheffield Wednesday Football Club Limited & Others v Hargreaves [2007] EWHC 2375 (QB) demonstrated the difference between what the judge called harmless ‘saloon bar moanings’ and more serious allegations that had been made by fans on a discussion forum associated with the Sheffield Wednesday Web site. Claims of selfishness, greed, dishonesty and untrustworthiness fell into the serious bracket; the operator of the Web site was forced to disclose personal information relating to the users in question. But postings that were clearly meant to be taken as a joke were not sufficient for the judge to override the privacy rights of the users concerned by ordering disclosure of their identities.
Regulation
So what are the options for regulation? Newspapers and magazines (in respect of which complaints can be made to the Press Complaints Commission) and television companies (regulated by Ofcom) are operated by substantial companies based and conducting business in the UK. They are therefore susceptible to effective UK regulation. On the other hand, blogs, discussion forums and other Web sites vary widely in purpose, origin and ownership. The Broadcasting Standards Commission, whose duties were later inherited by Ofcom, described the Internet as ‘a cross between a tribal notice board, an information exchange, a library, a chat line, an entertainment centre, a shopping and banking hall, and a post box’. As a result, regulating all Web sites is impossible. It would simply not be practicable or enforceable to require all owners of blogs or Web sites in the UK (wherever they may be hosted) to register their contact details or adhere to a set of rules. Any such rules could easily be flouted and it would be an impossible task for any regulator to enforce such rules.
However, in respect of journalism, there may at least be a way of reputable journalistic Web sites distinguishing themselves from the anonymous bloggers and forums that set out to cause trouble. One option may be to extend the remit of Ofcom or the PCC to create a voluntary code of conduct which governs the content of journalistic Web sites and provides for a complaints procedure. The PCC has already extended its ambit to cover editorial audio-visual material on newspaper and magazine Web sites. Why should it not go further and allow Internet only publications to join?
But why would any journalistic Web site voluntarily subject itself to regulation? There may be a number of advantages, as set out below.
First, there is now a well-established defence to libel known as ‘Reynolds privilege’. It is available to the press and others who can show that a publication, even if false, was in the public interest and was the product of ‘responsible journalism’. Responsible journalism is judged by reference to a number of factors, including the seriousness of the allegations, the steps taken to verify sources, the urgency of the publication, and the extent to which the subject has had an opportunity to put his side of the story. It is a test which is applied to steps taken before, not after, publication. However, it will be important for any news organisation wishing to persuade a court that it acted responsibly in publishing an article that it is a serious news organisation with proper procedures in place for ensuring compliance with the law. Ostensible compliance with a code of conduct, which could apply to both pre and post publication procedures, would help considerably in overcoming that hurdle.
Secondly, journalists and news organisations receive protection from disclosing their sources under s 10 of the Contempt of Court Act 1981, which provides that a court may only order such disclosure if it is ‘necessary in the interests of justice or national security or the prevention of disorder or crime’. In theory, this protection is also available to bloggers and Web site owners who publish and are responsible for journalistic content. However, it is likely to be far easier to persuade a court that it is ‘in the interests of justice’ for an abusive blogger to disclose his sources than for a respected journalist to do so. By signing up to a code of conduct, news organisations can demonstrate that they are worthy of the protection of s 10 and that the exceptions within it should not be applied easily.
Thirdly, journalists also benefit from an exemption from unlawful data processing under s 32 of the Data Protection Act 1998. This exemption applies if the data processing is undertaken with a view to the publication by any person of any journalistic, literary or artistic material and the data controller reasonably believes that, having regard in particular to the special importance of the public interest in freedom of expression, publication would be in the public interest. Again, for an abusive blogger, this would be a considerable hurdle to clear. But an online news organisation which signs up to a voluntary code of conduct would have a much better chance of persuading a court or an Information tribunal that publication would be in the public interest.
It may be that the above legal reasons for signing up to a code of conduct are not persuasive enough for a news organisation to subject itself to regulation. However, there must surely be a commercial benefit for an Internet news provider in demonstrating to readers, advertisers and sponsors that it is reputable and subject to a voluntary code of conduct. The code of conduct could act as a kite mark which would indicate to readers that they are reading material from reliable sources and may also give comfort to potential advertisers and sponsors that their name will not become tarnished by abusive and illegal Internet content.
Conclusion
In 2002 the Law Commission suggested that a voluntary code of conduct be developed for ISPs to assist in dealing with notice and take-down procedures (Law Commission Scoping Study 2 ‘Defamation and the Internet’, December 2002). There has been no such code of conduct, probably because it is simply too difficult to get so many different parties to draft it and agree to it. The same may be true of any attempt to draft a code of conduct for online news organisations, but in the PCC Code they at least have a good starting point. It may be worth a try. It would never solve the problem of anonymous Web sites but it would at least help to separate the wheat from the chaff and give respectable news organisations an additional badge of credibility.
Ashley Hurst is an Associate in the Media Litigation department at Olswang.
(Olswang acted for Gentoo Group/Peter Walls and Applause Store Productions Limited/Mathew Firsht in the above mentioned cases.)
