In Kaschke v Gray [2010] EWHC 690 (QB) the court had to decide whether the owner of a blogging web site could rely on the defence in reg 19 of the Electronic Commerce (EC Directive) Regulations 2002 (S.I 2002 No 2013) when a visitor to the web site posted defamatory comments.
H, the second defendant, operated a blogging web site called www.labourhome.org. This was described on its ‘About’ section as ‘a popular political collaborative multi blog specialising in British politics …’.
G, the first defendant, was a visitor to the web site unconnected with H. On 9 April 2007 he made a post on the web site which K, the claimant (appearing as a litigant in person), alleged to be defamatory of her. Her solicitors posted to H a letter of complaint in June 2007 which H denied having received. On 7 August 2007 K emailed H complaining that no response to the letter had been received. H then immediately removed the post which was the subject of the complaint.
H’s evidence about the way he administered the web site was as follows. He wrote articles for placing on the web site and carried out other tasks such as conducting polls and interviews to be placed on the web site. He also tried to secure articles from high profile authors. The home page had a segment headed ‘Recommended’ and one headed ‘Recent Blogs’ as well as a more prominent segment headed ‘Top Entries’. As soon as an individual blog post was written and appeared on its own web page, its title together with the ‘username’ of the person who wrote it and a link to the full text of the post appeared at the top of the ‘Recent Blogs’ segment on the home page. That segment contained links to the last 15 posts placed by members. That was a completely automatic process requiring no intervention from H and over which he had no influence.
Entries in the ‘Recommended’ section of the home page which included links to the recommended blog posts were generated by a process in which members were able to recommend or un-recommend individual posts by clicking a button on the page of any given post. When a post achieved a net score of 3 or more recommendations a link to it was automatically placed in the recommended section of the home page. In his capacity as a member, H could recommend a post like any other member. However in his capacity as operator of the site he had no input into the system of recommendations.
From time to time H considered whether entries appearing on the ‘Recommended’ and ‘Recent Blogs’ lists on the home page were suitable for increasing to a more prominent position. If an item was promoted in that way, far more detail was provided about each post on the homepage including the date, the time of the post and a preview of part of the post comprising anything from a couple of lines to several paragraphs, pictures and video clips. H’s decision whether or not to promote a post was based broadly on a number of factors including whether it a had a large number of comments, who it was written by and whether if he looked at the full post it was interesting on its face. In addition he sometimes edited to prominence a piece without going through the promotion process, for example where he persuaded a prominent politician to post an article on the web site or where he had written messages about the running of the site which he thought needed to be seen by members particularly quickly.
H did not generally monitor blog posts, and he exercised very little editorial control. Members had always been free to write articles of interest to them and he rarely altered anything that had been posted by members. Those alterations were limited to spelling or grammar corrections to a post once he had decided to promote it on the home page.
H was able to remove articles. He estimated that he had done this on only four or five occasions prior to August 2007, eg where an article was offensive or pornographic.
So far as G’s blog post was concerned, a link to the blog appeared in the ‘Recent Blogs’ section of the home page of the web site for approximately five days. Prior to August 2007 H had not read the post, and he had no recollection of seeing the title of the post in the Recent Blogs list on the home page. Moreover while he was aware of the existence of G, he did not know him personally, did not know at that time that he posted on H’s web site or that he did so using the username ‘Grayee’.
As soon as H become aware of the contents of G’s post he immediately removed it from the web site.
Thus it was clear from H’s own evidence that he exercised some editorial control over parts of the web site and in particular over the home page, and that his involvement in the web site as a whole and in particular in the home page went beyond the mere storage of information. Regulation 19 immunity could not be available in respect of liability for defamatory words appearing on the home page.
K commenced proceedings against G and H claiming damages for libel. H applied for summary judgment striking out the claim on the grounds that reg 19 provided him with a defence to the claim. Regulation 19 reads 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 …’
If H had exercised no control at all over the material posted on the web site or over G, he would have been able to say that the web site as a whole was an information society service which consisted only of the storage of information provided by a recipient of the service. However it was clear that H did exercise control over parts of the web site and some control over individual postings.
It was therefore necessary for the court to decide whether the information society service referred to in reg 19 was the web site as a whole, or whether one individual blog post could itself be an information society service. H could not be entitled to the benefit of the reg 19 defence unless an individual blog post could itself be an information society service.
Stadlen J held in favour of H on this point. In deciding that an individual blog post could itself be an information society service he referred to three authorities.
In Bunt v Tilley [2006] EWHC 407, Eady J held that BT could rely on the reg 19 defence in relation to Usenet news groups which it hosted. It was implicit in his judgment that he at the very least considered that the fact that BT, while not operating the news groups, had the ability to remove postings from its news group server was not incompatible with and did not prevent a conclusion that BT was the provider of an information society service which consisted of the storage of information provided by a recipient of the service.
In Mulvaney v The Sporting Exchange Ltd trading as Betfair [2009] IEHC 133 the defendant’s betting exchange web site included a chat room in which registered customers of Betfair might make comments concerning sport, betting or other issues. The High Court of Ireland held that Betfair was the provider of an information society service, ie the chat room, which consisted of the storage of information provided by a recipient of the service, and that Betfair could rely on the equivalent defence in the Irish regulations.
In Karim v Newsquest Media Group Ltd [2009] EWHC 3205 (QB) the claimant brought a libel action against the defendant which was a large regional media group. The claimant complained of an article published on a number of web sites and also in respect of user comments about the article which were posted to the bulletin boards on web sites hosted by the defendant. The defendant applied for summary judgment striking out the claim, and the claimant did not appear at the hearing. In a short judgment Eady J held that the defendant could rely on the Regulation 19 defence even though the defamatory content appeared on the same web page as content written by or chosen by the defendant.
Despite reaching a conclusion favourable to H on the legal issues, Stadlen J declined to strike out the claim. He held that the test for summary judgment had not been satisfied on the facts. The burden of proof fell on H to establish the Regulation 19 defence, and there was a realistic possibility that K might establish further facts at the trial, with the benefit of cross-examination of H, which showed that H had exercised a degree of control over the specific blog post complained of, so that he could not establish that the relevant service consisted only of the storage of information.
Clive Freedman is a Barrister at 3 Verulam Buildings and an SCL Trustee
