Libel – Absolute privilege – s.14 Defamation Act 1996 – Fair and accurate report of court proceedings – Regulation 19, E-commerce Regulations 2002 – User-generated content
A libel complaint was brought in relation to an article published online only, on various regional newspaper websites, and the readers comments that followed the article. D applied for summary judgment and argued that the article itself was absolutely privileged as a fair and accurate report of court proceedings within s. 14 Defamation Act 1996. The claimant and his sister were determined by the Law Society Disciplinary Tribunal to have mishandled client money. Newsquest argued the readers comments were either fair comment, vulgar abuse not to be taken seriously or protected by regulation 19 of the E-commerce Regulations 2002. The pre-action protocol was not obeyed but the articles and comments were removed promptly when the claim was received.
Whether there was any realistic prospect of the claim succeeding, including (1) Whether the article was absolutely privileged; and (2) whether publication of the readers comments was protected by regulation 19 of the E-commerce Regulations 2002.
The claim had no realistic prospect of success and summary judgment was entered:
(1) S.14 Defamation Act 1996 applied. Legal proceedings may be construed widely enough to include the Disciplinary Tribunal of the Law Society (the relevant proceedings) and the coverage was fair, substantially accurate and contemporaneous.
(2) The publications were taken down as soon as the nature of the complaint was communicated to the Defendant. The Defendant could avail itself of a defence under regulation 19 of the E-commerce regulations 2002. There was no threat of republication so the inapplicability of regulation 19 to claims for an injunction was immaterial.
This decision extends considerable protection to hosted user-generated content. From the transcript the Court does not appear to have scrutinised whether a primary commercial publisher is an ‘information society service’ within the meaning of the Directive. The ability to post comments may not be ‘a service provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services’, as the Directive requires. It is a moot point whether general website advertising revenue not provided by the service recipient is sufficient, but both the Department of Trade and Industry and the Law Commission considered that Regulation 19 applied only to internet intermediaries providing server-based internet storage for websites and newsgroups.
As a practical matter, complaints notified to hosts within regulation 19 must explain why a published allegation is false (and unlawful), as opposed to merely defamatory.