The web
The difference between and blog and a website
1. Blogs are faster moving – they’re updated all the time. Websites are more static.
2. Blogs have the most recent material at the top. Websites have the most important material at the top.
3. Blogs are personal – like a diary. Websites aren’t.
4. Blogs are set up to converse with your readers – a dialogue. Websites are mainly there to inform/sell.
5. Blogs use RSS feeds to inform followers of updates. Websites don’t.
6. Blogs allow visitors to converse and meet one another, dialogue etc … websites down.
See our Law consultancy services and NCTJ Diploma courses.
A libel judge used hyperlinked articles to establish the context of a defamatory statement.
It is the first time that linked articles were assessed as part of the ‘bane and antidote’ defence.
This defence was established by the House of Lords in 1985. The Lords said that a defamatory allegation in an article could be removed by the article’s overall context.
For example, a defamatory headline could be ‘cured’ by the facts within the accompanying article.
The case involved the Spectator magazine, which was sued by Islam Expo Ltd.
The magazine’s lawyers claimed that four hyperlinked articles made it clear the original article did not refer to the company.
And the trial judge, Justice Tugendhat has said he was prepared to consider the links in deciding whether the article is defamatory.
He drew a parallel between and article and hyperlinks and a printed story being started on one page and continued on another.
See our Law consultancy services and NCTJ Diploma courses.
Confusion over UGC
A relaxation in the rules on handling user generated content on media websites is proving to be a mixed blessing.
It is around 12 months since the High Court ruled that newspapers and magazines qualified as Internet Service Providers and were NOT responsible for readers’ posts on talk boards.
The judgement meant that they could not be sued for libel, provided they didn’t moderate posts and removed offensive material quickly if there was a complaint.
Many publishers rejoiced at the time in their new-found freedom, and the reduction in workload.
But for many, the joy has been short-lived. They have found that non-moderation has led to their talk boards being full of comments that not just defamatory, but sometimes obscene, racist, vulgar and inflammatory as well.
The content is starting to affect their brands and their reputations and means the printed space and web space are out of sync with each other.
The irony is that a letter used on a printed letters page is subject to high levels of legal checks. But the same letter can be used on a talk board without being checked at all.
One editor tells us: ‘We’re caught between a rock and a hard place. We haven’t got the staff to moderate the posts – there’s too many of them.
‘But if we don’t moderate them, the talk boards damage us. We don’t want to be associated with some of the rubbish that people put there.’
Some media outlets have gone back to moderating again – and others are considering following Sky News’ example and closing the talk boards altogether.
Some publishers are experimenting with having separate sections of the same site – some moderated, some not. But it is not clear yet whether the courts would accept that the same site could be an ISP and a publisher.
My view is that editors can risk intellectual snobbery by being too choosy with readers’ posts.
We are used to ‘respectable’ middle class readers writing to our letter pages in eloquent prose that always starts with ‘Sir’.
And who are we to deny people from other cultures the right to express their views in their own cultural language, where they use ‘f*ck’ every other word?
In the meantime, the Attorney General Dominic Grieve believes the media should moderate talk boards and remove posts that prejudice trials.
He wants discussions about the problem.
He said in a speech: “If it is increasingly easy for individuals to act as unofficial journalists and publishers the greater the need for general understanding about why restrictions are sometimes necessary.
“This extends particularly to those who run websites upon which members of the public place their opinions.”
“There must be an argument that they too have to ensure that a trial is not prejudiced by what is posted.”
See our Law consultancy services and NCTJ Diploma courses.
Media websites that provide chatrooms for the business community are facing stricter scrutiny.
The Financial Services Authority is monitoring sites closely in a bid to combat market abuse.
It has already fined one investor who posted information on a talkboard in an attempt to raise the company’s share price. The investor had obtained the information dishonestly.
Other web users are using talkboards to make defamatory comments that can affect businesses’ share prices and market performance.
One oil company, Nighthawk Energy has obtained a court order to identify people who posted allegedly defamatory rumours about their operations and management on a talkboard. It is now threatening to sue the individuals.
Nighthawk said the posters were trying to hide behind a cloak of anonymity, using anonymous email, social networking or bulletin board accounts.
Another energy company, Nostra Terra Oil and Gas is also planning legal action over defamatory posts about its senior management. It has already used a court order to identify posters.
Web editors should remember:
- Don’t pre-moderate posts on talkboards.
- Remove them immediately if there is a complaint.
- Set up a system so that complaints can be responded to quickly.
- Comply with any court orders demanding posters’ IDs.
- Make sure the site terms and conditions do not guarantee to protect posters’ anonymity.
See our Law consultancy services and NCTJ Diploma courses.
A libel judge used hyperlinked articles to establish the context of a defamatory statement.
It is the first time that linked articles have been assessed as part of the ‘bane and antidote’ defence.
This defence was established by the House of Lords in 1985. The Lords said that a defamatory allegation in an article could be removed by the article’s overall context.
For example, a defamatory headline could be ‘cured’ by facts within the accompanying article.
The current case involves the Spectator magazine, which is being sued by Islam Expo Ltd.
The magazine’s lawyers claim that four hyperlinked articles make it clear the original article did not refer to the company.
And the trial judge, Mr Justice Tugendhat has said he is prepared to consider the links in deciding whether the article was defamatory.
He drew a parallel between an article and its accompanying hyperlinks, and a printed story that started on one page and continued on another.
See our Law consultancy services and NCTJ Diploma courses.
User generated content.
Media websites are not responsible for defamatory user generated content.
Judge David Eady rule in 2009 newspaper and magazine message boards count as ISPs under the Electronic Commerce (EC Directive) Regulations 2002 and are protected from legal action as they are not responsible for what people post on them.
His ruling came in a case involving a solicitor who was struck off the Law Society roll last year for dishonesty. He later lost an appeal, and the story provoked a flurry of reader comments – some negative – on a Newsquest website message board.
The solicitor complained to the website operators about allegedly defamatory comments, and they were removed..
He also began legal proceedings, claiming that Newsquest were responsible for publishing the defamatory words.
But Judge Eady ruled that magazines and newspapers were not liable for defamatory UGC, provided they:
1. Don’t moderate it, and
2. Remove defamatory posts quickly if there is a complaint.
The ruling also means media website operators will no longer be forced to reveal the identities of readers who post defamatory comments.
There is still a risk, though, that they could be held liable for UGC that is in contempt of court or that breaches other laws. The E-Commerce Regulations make it clear that publishers are only safe if content does not breach any other law.
See our Law consultancy services and NCTJ Diploma courses.
Dangers with UGC
The dangers of pre-moderating user generated content have been emphasised again in the high court.
A recent case involved a blog post on labourhome.org by a user who said a local political activist had been arrested on suspicion of being a member of a terrorist group.
Activist Johanna Kasche started libel proceedings, claiming that although she had been arrested, she had never been a member of the group, Bader Meinhoff.
Site owner Alex Hilton said he had not read the comments before they were posted, and was protect under the EU E-commerce Directive.
This gives ISPs legal protection for the information they store or pass on to users, provided they are not involved in creating it or editing it, and remove it quickly if there is a complaint that it breaks the law.
Hilton’s mistake was to manually ‘upgrade’ entries on the auto-generated Recent Blogs and Recommended Blogs lists on the home page.
His actions meant the home page provided more detail about the post, including a preview, pictures and video clips.
The Judge, Mr Justice Stadlen, said this his actions went beyond storing information and passing it on – so he was liable if the defamatory words appeared on the home page.
The judge said that even correcting the spelling and grammar in a post could mean protection under the EU Regulations could be lost.
The case will now go for a full trial – but Hilton cannot use the EU Regulations as a defence.
The ruling again confirms the danger of manually pre-moderating web posts in any way, including dealing with:
- Quality control
- Spam
- Obscenity
- Bad language
- Spelling, grammar, punctuation etc.
The advice remains: leave user generated posts alone until you get a complaint.
See our Law consultancy services and NCTJ Diploma courses.
Links to related stories
Does your website display links to ‘Related stories’ on its news pages? You should be review them if a crown court trial is about to start.
A story about the start of a trial could automatically generate links to ‘Related stories’, which could be prejudicial.
They could contain previous convictions, reader comments, CCTV and other information that could prevent a fair trial.
Similarly, links could be generated that identified a victim of a sexual offence whose name and photo was used when they were abducted.
The attorney general has re-assured the media that they will not be prosecuted if stories are sitting in an online archive.
But they can face prosecution if new links are published that draw attention to the articles.
News editors should have a system of checking automatically generated links when trials start or are previewed,
See our Law consultancy services and NCTJ Diploma courses.
Blogging isn’t anonymous
The courts have again confirmed that blogging is a public activity – and are prepared to unmask anonymous bloggers if necessary.
The latest example involves a policeman who blogged anonymously about his work. He tried to get an injunction to protect his ID – but failed.
Judge David Eady recently ruled that the blogger had no expectation of privacy.
See our Law consultancy services and NCTJ Diploma courses.
Non-moderation – a mixed blessing
A relaxation in the rules on handling user-generated content on media websites is proving to be a mixed blessing.
It is around 2 years since the High Court ruled that newspapers and magazines qualified as internet service providers (ISPs) and were NOT responsible for readers’ posts on talk boards.
The judgement meant that they could not be sued for libel, provided they didn’t moderate posts and removed offensive material quickly if there was a complaint.
At the time, many publishers rejoiced in their new-found freedom, and the reduction in their workloads.
But for many, the joy has been short-lived. They have found that non-moderation has led to their talk boards peppered with comments that are not just defamatory, but obscene, racist, vulgar and inflammatory as well.
This type of content is affecting their brands and their reputations and means their printed space and web space are out of sync with each other.
The irony is that a letter used on a printed letters page is subject to high levels of legal checks. But the same letter can be used on a talk board without being checked at all – and can contain libels, expletives and anything else the reader likes.
One editor tells us: ‘We’re caught between a rock and a hard place. We haven’t got the staff to moderate the posts – there’s too many of them.
‘But if we don’t moderate them, the talk boards damage us. We don’t want to be associated with some of the rubbish that people put there.’
Some media outlets have gone back to moderating again, and others are considering following Sky News’ example and closing the talk boards altogether.
Some publishers are experimenting with having separate sections on the same site – some moderated, some not. But it is not clear yet whether the courts would accept that the same site could be both an ISP and a publisher. I think it is unlikely.
My view is that editors can risk intellectual snobbery by being too choosy with readers’ posts.
We are used to ‘respectable’ middle class readers writing to the letters page in eloquent prose that always starts with ‘Sir’.
But who are we to deny people from other cultures the right to express their views in their normal language, where they say ‘f*ck’ every other word?
In the meantime, the new Attorney General Dominic Grieve believes the media should moderate talk boards and remove posts that prejudice trials.
He wants discussions about the issue.
He said in a recent speech: ‘If it is increasingly easy for individuals to act as unofficial journalists and publishers the greater the need for general understanding about why restrictions are sometimes necessary.
‘This extends particularly to those who run websites upon which members of the public place their opinions.
‘There must be an argument that they too have to ensure that a trial is not prejudiced by what is posted.’
A change in the law could threaten editors’ defence of innocent publication under the Contempt of Court Act. And even if it was introduced, it would be virtually impossible to enforce it in non-media sites, especially if they are hosted abroad.
See our Law consultancy services and NCTJ Diploma courses.
Take care with those auto-generated links
Does your website display links to ‘Related stories’ on its news pages? Then you should review them if a Crown Court trial is about to start or is in progress.
A current story could automatically generate links to ‘Related stories’. And these could contain previous convictions, reader comments, photos, CCTV footage and background information about defendants.
They could contain previous convictions, reader comments, CCTV and other information that could prevent a fair trial.
Similarly, links could be generated that identified a victim of a sexual offence whose name and photo had been used in an abduction.
The former attorney general has re-assured the media that she will not prosecute if potentially prejudicial stories are available in an online archive – though police sometimes ask editors to remove them when a trial draws near.
But editors can face prosecution if new links draw attention to the articles.
News editors should have a system of checking automatically generated links to ‘Related stories’ when a trial date approaches.
See our Law consultancy services and NCTJ Diploma courses.
Make the most of your posts!
Do you archive all your posts on talk boards and blogs – including ones you removed?
If not, you put yourself at a disadvantage if someone complains about a post later on.
Also, take care when inviting vulnerable people to write about their experiences … eg victims of rape, mental illness, trauma etc.
You should consider whether the writers can cope with abusive posts that will almost inevitably follow.
It is wise to mention the dangers to the writer and consider turning off the ‘comments’ facilities.
See our Law consultancy services and NCTJ Diploma courses.
