The recent High Court judgment in McGrath v Dawkins [2012] EWHC B3 (QB) focuses on a detailed analysis of an exchange conducted mainly through the online review pages of Amazon. The judgment was concerned with interim applications for the claims to be struck out which were largely successful (although one element of the claim survived) but the most interesting aspects of HHJ Moloney’s judgment for IT lawyers may relate to Amazon’s immunity and the weight given to the involvement of the claimant in the online exchanges which were alleged to be defamatory. The remainder of the judgment concerns libel principles that are not transformed by their online context and which seem broadly familiar but libel aficionados are referred to the full judgment for that (although it is not an edifying experience).
The case mainly concerned an argument between a militant atheist (Jones) and believer in God (McGrath). The nature of their exchange was prominently lacking in respect for their opponent in argument and the claimants, an individual and a small publishing company that he controlled, took the view that some of the suggestions made by the atheist were defamatory and untrue.
Amazon’s Status and Liability
HHJ Moloney considers the claim by Amazon to immunity under the Electronic Commerce Regulations 2002, reg 19 and the ‘innocent dissemination’ defence under the Defamation Act 1996, s 1 together (at [29]-[48]). The judge was ruling on an interim application and so was wary of conclusions in areas that might be fact sensitive.
The processes adopted by Amazon as to both pre-publication processes and post-publication responses were crucial. As to pre-publication processes, the Amazon web site (‘of enormous size’) has user guidelines which forbid defamatory material, and it can blacklist offending users. The principal active precaution taken is the use of an automatic filter excluding reviews or comments which either contain certain forbidden words or are submitted by blacklisted users. None of the postings complained of failed either of these tests, so they were displayed without any human intervention.
Post-publication, a person who is aggrieved by a review or comment has a number of ooptions:
· To use a “Report Abuse” button which permits the reader to report the item as “inappropriate”. The claimant did so, and Amazon accepted that he did on some occasions, but it turns out that this would have been of little effect because (unknown to readers) Amazon will not consider an item for removal unless three or more different users report it.
· To report the item as defamatory (again via the Report Abuse button) by using a further link to Amazon’s Notice and Takedown Procedure.
The Notice and Takedown Procedure forms part of Amazon’s general Conditions of Use and Sale, to which there is a link on every webpage. Condition 8 reads as follows:
“Defamation Claims
Because Amazon.co.uk lists millions of products for sale on the website and hosts many thousands of comments, it is not possible for us to be aware of the contents of each product listed for sale or each comment or review that is displayed. Accordingly Amazon.co.uk operates on a “notice and takedown” basis. If you believe that any content on, or advertised for sale on, the website contains a defamatory statement, please notify us immediately by following our Notice and Procedure for Notifying of Defamatory Content. Once this procedure has been followed, Amazon.co.uk will make all reasonable endeavours to remove the defamatory content complained about within a reasonable time.”
Clicking on the words underlined leads to a pro forma document which one is invited to fill in, print off, sign and post to Amazon’s legal department in Slough. That pro forma is in the form of a witness statement, but with content not dissimilar to a defamation protocol letter before action.
The claimant did report some items as “inappropriate” but did not use the Notice of Defamatory Content procedure because it relied on ‘snail mail’ – the pro forma cannot simply be emailed direct to the legal department. He did take steps to bring his grievance to Amazon’s notice. On 17 September 2010 he emailed Amazon’s Technical Support address complaining about the postings, which he described as “abusive” and “slandering”, referring in particular to a “vendetta” and to being called a “liar”. He named the 4th Defendant and gave his email address, but did not give specific details of the location of the words complained of (though he did refer to ‘the thread under The Grand Design by Stephen Hawking’). He asked for Mr Jones’s comments to be removed and his account to be considered for suspension or deletion. Technical Support replied the next day saying that they were unable to take any action – they did not forward the email to the legal department or give C any help or advice as to how to pursue the matter.
On 30 September 2010 the claimant made contact with the legal department. The material parts of this email are as follows:
‘http://www.amazon.co.uk/review/T3TIGPA68KMZEQ
The above review and the reviewer Mr V.J.Jones “vjohn82” are the subject of legal action by McG Productions through solicitors Tollers of Milton Keynes. We have already flagged this person’s comments and reviews against the book The Attempted Murder of God: Hidden Science You Really Need to Know as inappropriate as they attack the author and company in a libellous and defamatory manner. To date Amazon.co.uk has done nothing about it. Please remove immediately all comments by this gentleman in relation to the book, the company and the author and submit for removal all Google cache entries. By allowing these comments on Amazon.co.uk, Amazon.co.uk also becomes implicated in the legal action.’
This was promptly acknowledged and the particular review identified in the email was taken down before midnight on 30 September 2010. Also removed that night were 14 comments by Jones. This may have been done by the Customer Service Department independently of the legal department; on 30 September 2010 they emailed C saying that:
‘…these comments have been removed from our database and will shortly disappear from the website. We do exercise some editorial control over our customer reviews and strive to block these kinds of reviews. Amazon.co.uk does not tolerate profane or spurious customer reviews. Our intention is to make the customer review forum a place for constructive commentary and feedback, so reviews that fall outside these guidelines are removed from the website.’
On those facts, HHJ Moloney went on to consider the reg 19 and s 1 defences.
a. the status of the defendant – does he qualify for protection at all?
b. the defendant’s conduct and state of knowledge (and consequent responsibility) in relation to the particular publication complained of, prior to complaint;
c. the defendant’s response upon being informed of the defamation – is it sufficient?
– does D [Amazon] provide an information society service which consists of the storage of information provided by a recipient of the service? And does the claim arise as a result of that storage?
S.1 of the 1996 Act sets a negative test:
– D must not be the author, editor or publisher of the statement; but a person will not be considered the author, editor or publisher if (to give the most applicable statutory example) he is only involved in operating or providing any system or service by means of which the statement is made available in electronic form.
So far as the Reg. 19 test is concerned, it is clear that the service Amazon provides to its users, of storing their reviews and comments for reading by others, falls within that definition.
On this issue, C [the claimant] objects:
a. that Amazon cannot be regarded as merely a passive or neutral medium for storing and distributing material provided by others. It is running the website for its own profit and has a clear commercial interest in encouraging lively debates between its customers on the product-related forums; and
b. that it does exercise a measure of editorial control over content, sufficient to deprive it of protection.
“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”.
So far as the concept of “issuing” is concerned, there is no doubt that the 1996 Act was intended to preserve the established distinction between publishers who originate books and other publications, and distributors and sellers who pass on to the public the books originating from the publishers; see s. 1(3)a. “Issuing” refers to the former process, not the latter one.
Amazon’s primary business (for present purposes) is of course that of an online bookseller rather than a publisher. That is where its revenue comes from, not from the operation of the website (which is free to users). Ancillary to its business, a traditional bookseller might well issue free publications of its own such as catalogues and advertisements, but nobody would therefore describe its business as that of a publisher. In the same way, it follows that even though Amazon may well be the “publisher” of the website and its user-generated content, in the broad sense in which that term is used in defamation law, and may well do so in the course of its business (i.e. as a means to its primary purpose of retailing the products of others) it is nevertheless plainly not a “commercial” publisher within the definition of s.1(2).
A corporation can have actual knowledge only through a human representative, and given the vast size and diverse nature of Amazon’s website there is no reason to suppose that anyone in Amazon was actually aware of these postings, let alone of their possible unlawfulness, prior to C’s complaints. C does not put forward any case for such actual prior knowledge.
The use of the word “defamatory” (as opposed to Reg. 19’s “unlawful”) is significant here, because subject to the question of legal innuendo it would be apparent to Amazon upon a first reading whether the words were defamatory, i.e. injurious to reputation. The word “unlawful” in Reg. 19 has been held to import the further requirement that the defendant should also “know something of the strength or weakness of available defences”; see Bunt v. Tilley [2007] 1 WLR 1243, per Eady J at para. 72.
- On the question of reasonable care, Amazon submits that its procedures as summarised at [33] above meet that standard. The problem on an interim strike-out application is that questions of reasonableness are generally fact-sensitive and will vary from case to case. I note the provisional view of Eady J in Metropolitan International Schools Ltd v. Designtechnica Corpn [2009] EWHC 1765 (QB) at para. 75 that it was difficult to comprehend how reasonable care could have been taken, when the publication took place without any human input on the part of the defendant (in that case a search engine rather than a website operator, but the point is a similar one here). The counter-arguments are not difficult to envisage (for example, that the automatic processes set a reasonable hurdle, or even that it might be reasonable in the context of a vast website like this to take no pre-publication steps at all) but I cannot say that the answer is obvious at this stage, so the attempt to strike out by reference to s.1 must fail.
i. had actual knowledge of unlawful activity, and/or was made aware of facts or circumstances from which it would have been apparent that the postings were unlawful (as opposed to defamatory); and if so
ii. acted expeditiously to remove or disable access to them.
This provision of Reg. 19 is amplified by Reg. 22, which provides that in determining actual knowledge a court shall take into account all the circumstances, and in particular:
“whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)c” [which requires the provider to make available to the recipient rapid and effective contact details including its e-mail address]
“and the extent to which any notice includes-
i. the name and address of the sender of the notice;
ii. details of the location of the information in question; and
iii. details of the unlawful nature of the activity or information in question”.
(C does not accept that Amazon’s Notice and Takedown Procedure, detailed above, complies with Reg. 22; but assuming that to be correct, a breach of Reg. 6 would not of itself invalidate a Reg. 19 defence.)
Amazon’s case is that in his communications with it C never even clearly specified the location of the postings of which he now complains, let alone set out facts and matters that would show them to be untrue or unfair. As to location, I am not persuaded of the merits of this point. Although C did not give URL addresses for each and every posting, he did specify Mr Jones’s own username, and the topic (Scrooby’s book) to which the objectionable statements related. Amazon’s website includes the facility to look up all other reviews from any reviewer, and as stated it had no difficulty in immediately identifying and removing 14 of Mr Jones’s comments about C.
It remains true, however, that not everything [Jones] has said about C or his book is the subject of complaint. Quite rightly, C recognises others’ rights to comment in strong terms on the literary and intellectual merits of his book and has tried to confine his complaints to other, less obviously legitimate areas. How was Amazon to perform that exercise of discrimination for him, if he did not specify the particular postings, or even parts of postings, of which he complained?
Although Amazon will be happy with this result, it should be noted that HHJ Moloney took the view, echoing Eady J in Metropolitan International Schools Ltd, that ‘it was difficult to comprehend how reasonable care could have been taken, when the publication took place without any human input on the part of the defendant’. It is also worth noting that the claimant failed to meet one of the requirements of a reg 19 notification so whether the Amazon procedure is valid in all cases was not fully tested.
But the main message of the case (other than the long-established lesson: don’t sue unless you really have to) is that, if a big bookseller like Amazon can take advantage of reg 19, even though it is hardly the sort of ‘information society service provider’ we usually think of, a reg 19 defence is available to every e-commerce operator and almost any organisation that allows or encourages interchanges online (even, dare I say it, educational charities like SCL). But beware of relying on the reg 19 defence unless you can indeed act expeditiously to remove or disable access to the information.
Abuse of Process: Gave as Good as He Got
HHJ Moloney QC at no point used the childish phrase above but there is little doubt that the fact of the claimants’ participation in the threads that were the main subject of complaints was influential. The judge said (at [94]):
‘In each of these cases… the claimants participated fully in the debate on that thread and had full opportunity (which they frequently took) to answer the criticisms made by [Jones] and others. … This participation by C will not only have a substantial effect on any jury’s assessment of the actual defamatory meaning of the words complained of (particularly where [Amazon’s] liability is concerned), but it will certainly operate as a very substantial mitigation. It raises an obvious question: what real and substantial need does C have for a vindication through the courts, when he has already put his case to the original audience at the time of the original publication?’
So, participation in such a debate may affect one’s right to claim. One can readily see that both a rock and a hard place loom into view: deny and that might affect the right to seek a remedy in the courts because the case has already been made; ignore and that might affect your rights because of a failure to act timeously or because of a perceived unreasonableness in seeking a legal remedy when a practical one was at hand.
