Online publisher successfully relies on the EU hosting defence for unmoderated user comments
Karim v Newsquest Media Group (27 October 2009) English High Court (Eady J)
Is an online publisher liable for unmoderated comments posted by users on its website? This question was answered positively by the English High Court recently in Karim v Newsquest.
Lawyers Mark Dennis, Timothy Pinto, Niri Shanmuganathan
Facts
A libel claim was brought by Mr Imran Karim (a solicitor) against Newsquest (a publisher). On 4 June 2008, the Solicitors' Disciplinary Tribunal had announced that Mr Karim was to be struck off following a hearing relating to allegations that he had mishandled client funds. On 6 and 7 June 2008, Newsquest published an article on its websites entitled "Crooked solicitors spent client money on a Rolex, loose women and drink". Mr Karim, who denies the allegations, issued libel proceedings in respect of:
- the online article; and
- user comments relating to the article which were posted on bulletin boards on Newsquest's websites.
Newsquest was not aware of Mr Karim's complaint until it received his legal claim. That day, Newsquest took down the article and the user comments. Newsquest subsequently applied for summary judgment and/or a strike out on the basis that the Claimant had no realistic prospect of success.
Decision
Newsquest's application succeeded – Eady J held that:
- the article was a fair and accurate report of legal proceedings published contemporaneously and so Newsquest was protected by absolute privilege; and
- in respect of the user comments, Newsquest did not have actual knowledge of any allegedly unlawful activity or information until it was notified by Mr Karim. As soon as the nature of the complaint reached Newsquest, the material was taken down. Newsquest was therefore entitled to rely upon the hosting exemption under the E-Commerce Regulations 20021. Although this exemption does not cover injunctions, Eady J remarked that an injunction was a "theoretical matter" in the circumstances.
Implications
This decision is positive news for the media. It shows the potential of the hosting defence for protecting online publishers who host unmoderated user comments as well as editorial content. The publisher must act expeditiously to remove or disable access to the (allegedly) unlawful content as soon as it becomes aware of it. Once that has happened, there will usually be nothing to injunct in most cases.
It is worth nothing that Mr Karim was not present or represented at the hearing and so the issue was not fully argued. As a first instance decision, it is not binding on the higher courts. It is also not clear from the judgment whether the user comments at issue appeared below the article, on separate forum pages or both.
By Tim Pinto and Mark Dennis - media and IP lawyers, who are part of Taylor Wessing's Publishing and Digital Content team.
1 Regulation 19 Electronic Commerce (EC Directive) Regulations 2002 (implementing Article 14 of the Electronic Commerce Directive (2000/31/EC):
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.
