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UK: Preliminary judgment suggests that online publishers are primarily liable for readers' comments

Editorial Staff

In general, newspapers have taken the view that if people sit in the pub, read headlines and/or articles and then discuss them that the content of that discussion is entirely outside the responsibility of the newspaper. That has been tempered with laws, rules and regulations that cover inflammatory content of one kind or another but so long as the original article stays within the lines of the permissible (no matter how close it comes), the view has held pretty much intact for generations. But if the article is on the internet and the discussion is not within a handful of people muttering into their beer but is available to the entire connected world, and the means of making that discussion available is owned and operated and controlled by the newspaper, is that a material difference? An English court decision is opening the door for it to be so and the ultimate consequence could be full responsibility for all on-line publishers including social media.

An couple from Cameroon but with French nationality, no paid employment and eight children complained that the five bedroomed house offered to them by an English local authority was inadequate. They approached the local press to seek sympathetic coverage. That story was picked up by the national tabloids which wrote unsympathetic, bordering on the hostile, articles. Then came readers' comments many of which were utterly hate-filled and hateful. The family sued the newspapers. Some have settled their claims. News Group and Express Newspapers have not. The case, in the High Court's Media and Communications List, was the result of a preliminary judgment published yesterday and it carries a stark message for all publications that allow third parties to post comments or other material and social media.

The hearing took place in London, before Warby, J, on 14 May 2018 and the Judgment was published on the 24 May. It is available in PDF format at https://www.judiciary.gov.uk/w....

The Defendants are the publishers of The Sun, the Daily Express and the Daily Star.

The judgment is long. These are the salient points so far as this article is concerned.

1. "The articles complained of did not convey any defamatory factual implications about the claimants. They did contain or imply a number of derogatory comments or opinions about them but none of those comment or opinions was, considered, individually, sufficiently harmful to either claimant's reputation to satisfy the serious harm requirement laid down by the Defamation Act 2013." The Judge goes on to say that it would seem that the libel claim must fail but, at Para 43 of the Judgment, he offers a possible life-line by saying that while the individual statements do not reach the threshold, the imputations which are conveyed by them collectively may do so. He invites the parties to make further submissions on this point.

2. Readers posted comments on the websites of all the newspapers concerned. The inclusion of the posts in the Claim is, the Judge says, in support of the claim that the articles caused serious harm. In short, they are evidentially relevant in the claim against the newspapers but there is no claim against the makers of those statements. It is alleged that the Comment Posts (as they are described in the Judgement) are harassment and a number of other wrongs by the publishers of the newspapers.

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