Tuesday, December 08, 2009

Hosting defence applies to user comments: English High Court

In a significant decision, Karim v. Newsquest Media Group, Eady J. has accepted that online newspapers can rely on the E-Commerce Directive hosting defence in respect of user comments, meaning that they should generally be exempt from liability in respect of those comments provided that they take them down when notified that they are potentially defamatory.

The plaintiff in this case was a solicitor who had been struck off following mishandling of client funds. The defendant's websites reported the proceedings before the Disciplinary Tribunal in an article titled "Crooked solicitors spent client money on a Rolex, loose women and drink", and a number of users made further allegations about the plaintiff in the comments attached to the article. The defendant took exception to both the article itself and the user comments and issued proceedings against the defendant without prior notice. On receiving the proceedings, the defendant took down the articles and comments the same day.

The plaintiff's case comprised two components - the article and the attached user comments - and the defendant applied for summary judgment in respect of both.

As regards the article, the court had no difficulty in finding that it was covered by absolute privilege as a fair, accurate and contemporaneous report of legal proceedings under s.14 of the Defamation Act 1996, and that portion of the claim was struck out.

As regards the user comments, the defendant argued that it was protected by the hosting defence, as transposed into UK law by Regulation 19 of the Electronic Commerce (EC Directive) Regulations of 2002. This provides:
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.
Although no authority was cited on this point, Eady J. stated that he was "quite satisfied" that the defendants could rely on this defence, going on to hold that the users were not acting under the "authority or control" of the defendant. This portion of the claim was therefore struck out also.

This appears to be the first time that an English court has dealt with this question, though it reaches the same result as the Irish decision in Mulvaney v. Betfair (t/a The Sporting Exchange).

As with that decision, it is good news for online publishers dealing with user-generated content, suggesting that the courts will adopt a wide interpretation of the hosting defence. But as with Mulvany v. Betfair, it might be unwise to celebrate yet. This is a first instance decision (albeit a decision of one of the most prominent judges in this field) and was based on the arguments of one side only. It does not consider the arguments which might be put forward to limit the hosting defence, and rather glosses over the question of whether posters in a moderated forum could be said to be acting under the authority or control of the host.

Experience from the US has shown that online immunities tend to be extensively challenged as plaintiffs seek to work around them. Section 230 of the Communications Decency Act has, in particular, been repeatedly litigated and occasionally evaded by plaintiffs. (Eric Goldman analyses some of the approaches taken by plaintiffs: 1|2|3.) It's safe to say that similar challenges to the hosting immunity are likely in Europe until such time as the European Court of Justice issues a definitive interpretation of its scope.

(Via The Register)

1 comment:

  1. TJ - Did you see the Flood case? UK decision. Think its Tugendhat J. Uphold print media Journalistic Priv and awarded damages based on online publication http://www.bailii.org/ew/cases/EWHC/QB/2009/2375.html

    Also see this one: http://www.bailii.org/ew/cases/EWHC/QB/2009/2448.html if for now other reason than it's funny. Course we don't have the same test here.

    For bloggers and privacy: http://www.bailii.org/ew/cases/EWHC/QB/2009/1358.html