This is a guest post by barrister James Tumbridge following a report by Iain Dale highlighting the difficulties which Labour blogger Alex Hilton faces. It is a cautionary tale for us all:

Alex Hilton

James Tumbridge

New media in the form of weblogs or ‘Blogs’, are subject to laws on defamation aimed more at the traditional media than the online. As authors and editors, bloggers, face a problem in the inter-active side comments. When bloggers allow the public at large to  comment by posting their own thoughts on the stories featured in the blog they are open to those people posting defamatory remarks, and confirming the truth of them may be onerous in the extreme. Those who enjoy this form of media will know that bloggers often bemoan the behaviour of those posting comments which are needlessly abusive and perhaps defamatory, and the matter is an increasing headache for successful blogs. Obviously, as a starting point those who post defamatory comments are the true defamers but as the editors/publishers/broadcasters of a blog, the blogger is risking liability for their comments. As a result bloggers must ask themselves if the posted comments whilst authored by a third party are leaving them liable for a defamation action by virtue of allowing/hosting their publication. Now after the inteim decision in Kaschke v Gray & Anor (‘the Labourhome decision’ [2010] EWHC 690 (QB) (29 March 2010), we have yet more evidence that bloggers can be liable for comments posted on the websites they control.

What is defamation?

Defamation is the making of a statement that lowers the opinion of others about the person concerned. In short statements which are alleged to defame cause loss to the person concerned in their trade or profession, or cause a reasonable person to think worse of them. Defamation can be either libel or slander. Defamation on the internet is mainly a question of libel as we are generally talking about the written word. There are few English law cases on whether web content is slander or libel, but Godfrey v Demon Internet [2001] QB 210 considered web content to be libel, and section 201 of the Broadcasting Act 1990 also points to it being libel. Likewise Canada’s Ontario Superior Court has found posting content on websites, and sending emails amounts to publication for libel; Warman v Grosvenor [2008] O.J. No. 4462. Additionally in Keith-Smith v Williams [2006] EWHC 860 (QB) where a 2005 UKIP General Election candidate was accused of sexual harassment of a female co-worker, and being a racist bigot, and a Nazi, libel was found (though via an absence of a defence), and £10,000 imposed as damages. Assuming a comment has been posted which is defamatory and the comment made it onto a site accessible to the public, the question for the blogger as a blog site editor/author is whether they are liable as the editor or publisher of someone else’s comment.

The Labourhome case’s background

Kaschke v Gray & Anor [2010] EWHC 690 (QB) is the second hearing of a case of defamation brought by Miss Kaschke against both the author of an alleged defamatory comment on the blog based website ‘Labourhome’ and the editor of that site Alex Hilton. In April 2007 the first defendant ‘Gray’ posted the alleged defamatory comment about Kaschke on Labourhome suggesting she was formerly linked to a terrorist group ‘Baader-Meinhof’ and that she had left the Labour Party to join the Respect party. Baader-Meinhof were a left wing terrorist group who are linked to many deaths in Germany in the 1970s, and the group was active well into the 1990s. Kaschke took objection to the remarks and complained to the editor of the site, the second Defendant ‘Hilton.’ Hilton admitted that on April 9th 2007 a poster with the user name ‘Grayee’ posted the article complained of on the Labourhome website, but he denied writing the words complained of or any part of them and asserted that he did not participate in any way in their publication beyond being the person who ultimately controlled the website. The question at the heart of the dispute for Hilton is therefore what liability does he or other editors of blogs and websites attract for the comments of others posted on sites they control?

The Labourhome decision

Following entry of Hilton’s defence based on section 1 of the Defamation Act he then sought summary judgment under Civil Procedure Rule 24 against Kaschke on the whole claim, alleging the claim had no real prospect of success because Hilton had a complete and independent defence under section 1 of the Defamation Act 1996. Had he been successful he would have ended the case against him. Section 1 of the Defamation Act allows a person who is not the author, editor or publisher of the statement, and they took reasonable care in relation to its publication, and did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement. The problem for a blogger is proving they are not at least the editor or publisher by the fact they run a blog site with interactive comments.

Hilton, additionally added a claim to a defence under Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (S.I 2002 No 2013).[1] The point of relying on Regulation 19 is to claim that Hilton’s role was merely providing a service to store information, a more specific description of a passive role, normally relied upon by ISPs (Internet Service Providers). Worryingly for Hilton his application was unsuccessful and the Master (a junior judge) at the first hearing of the case found that there was a prospect of Kaschke succeeding, and that neither section 1 of the Defamation Act nor Regulation 19 were guaranteed defences. Hilton then appealed the decision regarding Regulation 19 (but not his defence assertion under section 1 of the Defamation Act) and the matter came before Mr. Justice Stadlen.

Again unfortunately for Hilton Stadlen J. found against him and there are a number of aspects of his judgment that show Hilton’s role was not sufficiently passive to gain the protection of either section 1 of the Defamation Act or Regulation 19. Examples include Stadlen J.’s reference to the Master’s judgment in paragraphs 27 & 28 – of admissions by Hilton in his defence and witness statements:

“First Mr Hilton accepted that he was the operator of the website. Second he accepted that he initiated a system under which entries on the website could be and were described as recommended and that he could himself adjust the score required to entitle any entry to be so described. Third he accepted that he himself was involved in the promotion of posts, that is to say to place them in a more prominent position then they would otherwise be on the website. He cited the following extract from Mr Hilton’s first witness statement: ‘Whether or not I promote a post is based broadly on the following factors: (a) how busy I am and whether I see a link to the post on the home page; (b) how new it is; (c) whether it has been recommended; (d) whether it has a large number of comments; (e) who it is written by; (f) whether, if I look at the full post, it is interesting on the face.’”

“Hilton further accepted that on promotion he may make changes. “On promotion I may (but do not always) quickly check the piece for spelling and grammar and make corrections. However that it is the only time that I ever change a person’s post.” Fourth Mr Hilton accepted that there are occasions, albeit rare, when he would take it on himself to delete material from the website: “The system does allow me to remove articles from the website and I have done this in the past in response to a complaint or because I think that removal is otherwise necessary. I would estimate that I had done this on only four or five occasions prior to August 2007 (i.e. the date on which I first saw a letter from the claimant’s lawyers). There have been occasions where a pseudonymous member (i.e. a member who has signed up using details that are clearly not accurate) and has written offensive materials”

These comments and the overall view that Hilton may not be able to show that he was within the protection of the Regulation 19 defence, meant the Master considered the answer to the essential question to be uncertain, as to whether Hilton would be able to show his activity was limited to storage by him as a service provider of information provided by a recipient of the service. In Bunt v Tilley [2006] EWHC 407 Eady J. found that corporate defendants who were ISPs were within Regulation 19, and Dr. Matthew Collins in ‘The Law of Defamation and the Internet’ [second edn 2005] at para 17.03 states that: “[C]ommercial internet intermediaries, such as ISPs, bulletin board operators and web hosting services will usually satisfy this definition (of Regulation 19).” However, there is no authority in law or academic commentary that has firmly stated someone like Hilton who is editing and running a blog type website is within the meaning of Regulation 19. The closest Hilton came to demonstrating such authority came from the decision of Eady J. in the unreported case of Imran Karim v Newsquest Media Group Limited dated 27 October 2009. In that case the decision of Eady J. is not specific in the way Hilton requires it to be, and the facts are different as the posting occurred on bulletin boards that were not regulated as Labourhome is and there was argument about the link to the main newspaper sites not being sufficient. Essentially the decision to find the media group could rely on Regulation 19 was argued in a different manner and the judge found that the requirements of absence of knowledge of unlawful activity or information or expeditious removal and of the absence of authority or control of the defendant over the recipient of the service were met which is not the case with Hilton. However, the necessary premise of the judgment was that the media group also satisfied the requirement of showing that it provided an information society service consisting of the storage of information and that the liability alleged against it arose as a result of that storage, and in this regard Hilton no doubt hopes his role will be found to be the same. Indeed in the judgment Stadlen J. at paragraph 69 noted he did not find it an easy question to determine what comes within Regulation 19. Positively for Hilton, Stadlen J. did agree with some of the argument advanced in his favour regarding Regulation 19, but crucially he did not ultimately find in favour of Hilton’s application for summary judgment, and Stadlen J. stated in paragraph 92 of his judgment; “It follows that in my judgment there is a realistic prospect that Mr. Hilton’s Regulation 19 defence may fail and the claim should not be struck out.” Then at paragraph 112 he concluded; “For theses reasons, which differ in part from those of the master, in my judgment there is a realistic prospect that Mr Hilton’s Regulation 19 defence may fail at trial. Accordingly in my view the claim could not properly be struck out and the appeal fails.”

The Labourhome decision therefore tells us that it is far from clear that a blogger is not liable for allowing defamatory comments, and indeed there is arguable case they are liable. We must now await the final determination to learn if a blog editor like Hilton is protected under either section 1 of the Defamation Act nor Regulation 19, and hope that the judgment delivers a useful guide for others in the online media.

What can bloggers do?

Bloggers must be wary of comments and preferably –

(1) Moderate them, and if in doubt remove them, especially if advised they are defamatory.

(2) Bloggers based in England would also be well served to issue apologies. This is because section 2 of the Defamation Act 1996 provides for ‘making amends’ and allows a blogger to apologise or correct the statement in writing. Whilst such ‘making amends’ doesn’t guarantee absolvement it will be a point in the defendant’s favour. Importantly, should the offer to the person defamed be accepted, the defendant will not then be at risk of a defamation suit.

Bloggers should therefore watch what gets published and seek to make amends, which will reduce the risk of liability. Regrettably the only way to be risk free of defamation actions based on the comments left on a blog is not to have them, but what sort of blogosphere would that leave?

James Tumbridge, Barrister and Counsel to Gowlings.