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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 Letter Before Action (in the juvenile and arguably unclear language of today's English legal system it's called "the claim letter") was sent News Group on 7 February 2016. On 21st February, News Group disabled the comment function on the seven on-line articles about which complaint was made. "For the avoidance of doubt, this means that no comments that had been made were visible and no further comments could be made." In relation to The Express, the position is far less clear. It was said that the relevant posts were taken down on request but there is no firm evidence of when that happened.

"If the Claimants are not suing for libel in respect of the Posts...." is the phrase that indicates that the Judge does not dismiss the argument that the newspapers are liable for the publication of the libel, even though they did not author it. That position is reinforced at para 63 of the Judgment under Harassment. "the claim is novel but it is not manifestly unarguable. I record that the amendment only seeks to claim in respect of the Comment Posts and not any Third Party Posts."

The next place where publishers are at risk is in paragraph 77 in relation to a claim under the Equality Act. "the [defendants] are said to have victimised the claimants ... by providing a platform to the Posts acted in a manner that constitutes discrimination, harassment and/or victimisation by publishing the said articles/posts (sic)". (Note, the "sic" is by the Judge quoting from a claimants' document.)

There is a claim under the Data Protection Act. The claim relates only to the Posts. It is argued that the Posts are "data" and that the defendant newspapers were therefore data controllers within the meaning of that Act. The data, it is claimed, was "personal sensitive data" (because, the judgment says "the Posts referred to the claimants’ racial or ethnic origin and to the alleged commission of offences, in unlawfully claiming benefits.") Here, the Judge makes a leap. He does not decide whether the comments are, in fact, data as defined by the Data Protection Act. He also appears to accept, without question, that the continued display of comments is "processing" under the Act. He said "if, as alleged in the pleading, News Group failed to cease processing in response to the notice of 20 December 2017, then
in due course the claimants would have a basis – or part of a basis - for claiming the relief sought under DPA s 10(4): an order “to take such steps for complying with the notice... as the court thinks fit”. If the failure to comply caused damage and entitled the claimants to compensation there would also be a platform for relief by way of blocking, erasure or destruction under s 14(4). It would be unduly technical to dismiss the claim as premature" (because the statement of claim was filed before the notice period to cease processing had expired).

However, there is some hope for the newspapers. The Judge sets out the law as it stands relating to certain publications.

I have however concluded that I must stay this claim, pursuant to s 32(4) of the DPA which provides as follows:
“(4) Where at any time ("the relevant time") in any proceedings against a data controller under section 7(9), 10(4),
12(8) or 14 or by virtue of section 13 the data controller claims, or it appears to the court, that any personal data to which the proceedings relate are being processed -
(a) only for the special purposes, and (b) with a view to the publication by any person of any journalistic, literary or artistic material which, at the time twenty-four hours immediately before the relevant time, had not previously been published by the data controller, the court shall stay the proceedings until either of the conditions in subsection (5) is met.”

95.The conditions in s 32(5) are:
“(a) that a determination of the Commissioner under section 45 with respect to the data in question takes effect, or
(b) in a case where the proceedings were stayed on the making of a claim, that the claim is withdrawn.”

96. A determination by the Commissioner under section 45 is a determination that personal data “(a) are not being processed only for the special purposes, or
(b) are not being processed with a view to the publication by any person of any journalistic, literary or artistic material which has not previously been published by the data controller”

(the emphasis is mine.)

MR JUSTICE WARBY Sube v News Group Newspapers Ltd [2018] EWHC 1234 (QB) paras 94-96

But then that rug is quickly pulled from under the newspapers. At para 106, His Honour says " I am not by any means deciding that no legitimate DPA claim can be formulated."

There is no hint that that the newspapers claim that they are merely carriers of information - which is not in any event a defence to libel but may be a defence to some of the other claims. They do not plead that, in relation to the Posts, they are not the authors and that liability should rest with the authors. Equally, they do not claim that they have any information as to the true identity of the authors. This should be contrasted with the approach that many newspapers take with regard to Letters to the Editor where they do, in fact, take information that allows at least a degree of verification of the identity of the correspondent.

It seems as if the newspapers have allowed themselves to be used as pass-through vehicles for the actions of those who hide behind anonymity.

There are those (see our boss, Nigel Morris-Cotterill's book "Cleaning up the 'Net ) who argue against allowing such anonymity.

The judgment is not restricted to newspapers. All publishers are affected. That includes so-called social media and that includes not only Facebook, etc. but small-time bloggers, comments websites such as Amazon.com's reviews, Airbnb and TripAdvisor (sic).

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