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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.

The Statement of Claim includes, according to the Judgment, a claim for "damages in respect of a number of articles published in the print and online versions of the newspapers I have mentioned. The claimants also claimed injunctions to restrain the repetition of such publications. The complaint made at that stage was that the articles complained of were libellous and involved harassment of the claimants contrary to the Protection from Harassment Act 1997 (“PHA”). The claimants have
also sought to expand their case by adding claims in respect of further articles published by the Express; by complaining of Comment Posts as harassment; and by claiming that the publications complained of also amounted to malicious falsehoods and/or involved breaches of the Equality Act 2010 (“EA”) and/or breaches of duty under the Data Protection Act 1998 (“DPA”). "

His Honour granted the Claimants' application to amend the claim for harassment "to encompass the Comment Posts."

There are technical legal arguments as to whether or not the Comment Posts or Third Party Posts were in fact libellous or fell within any of the other points complained of. They are not the point of this article. This article is concerned with one fine, narrow point: is this judgment the tool that will ultimately provide the foundation for an argument that on-line publishers are responsible for content posted on their site by third parties? That, the judgement makes clear, is a very real possibility.

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