Defamation Liability for Blogging Platforms

An interesting case, reported by SCL with a good article explaining the issues, has hinted that there might be a third defence to liability for a web host where allegedly defamatory comments are posted. However the case doesn’t provide much detail on when that defence might apply.

In English Common Law, someone who publishes a defamatory statement may be liable, as well as its author, for the damage caused. Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 provides two defences to a claim that a hosting platform is liable for material provided by a user of the platform:

• the complained of material was removed “expeditiously” after the complaint, or
• the complaint wasn’t sufficient (the judge says it must be “precise and adequately substantiated”) to give the host “actual knowledge of unlawful activity or information”.

Now a case involving Google’s Blogger platform has suggested that what Blogger does may not be sufficient to count as “publishing” for defamation purposes anyway.

The reasoning for this seems to be that the platform’s involvement is entirely passive – that no positive action by it is required for the material to continue to be available. Suggesting that Blogger is like a wall on which defamatory graffiti are sprayed, the judge appears to follow the earlier case of Bunt v Tilley, where a number of ISPs were found not to be liable for allegedly defamatory comments transmitted across their networks. However he also refers to the case of Godfrey v Demon where choosing to carry a particular newsgroup was considered sufficient of a positive act to become a publisher. It’s not clear why the Blogger case was found to be more like Bunt v Tilley than Godfrey v Demon – one possibility is that the Human Rights Act has become law since Godfrey, so the Article 10 right to free expression now has to be given greater weight.

Web platforms probably shouldn’t rely on this defence until its limits are a lot clearer – the judge said that his decision was “fact-sensitive” and the commentary points out another recent case that reached the opposite conclusion. It’s also not clear whether the defence would apply to other types of liability that may involve a hosting platform (for example breaches of Intellectual Property Rights) since those may not rely on the same concept of “publisher”/”publishing”.

However given recent discussion on reform of defamation law, it’s interesting that the judge here says that it doesn’t matter for the platform’s liability whether or not the author of the statement can be identified (in Bunt v Tilley the author was identified, and a party to the case). Both the Government and Parliamentary Joint Committee’s proposals for a new Defamation Bill suggest treating postings differently depending on whether they are attributed or anonymous. This case suggests that the current law does not distinguish between them.

[UPDATE: Out-law's analysis suggests there's a second "new" defence in the judgment - that Blogger doesn't fit the Defamation Act's definition of a publisher either. Instead it could be "the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control"]