Libel left (online) is libel lost

February 10, 2009

Christopher Carrie operated a blog relating to his self-published book. The book made certain allegations about a deceased relative of Royd Tolkien, the defendant.

Mr Tolkien apparently took issue with Mr Carrie’s book and posted on the blog a list of “facts” about the claimant. Among other things, he said that Mr Carrie was a “fraudster who has tried for many years, unsuccessfully, to defraud and extract money from the Catholic Church, the Tolkien family and other celebrities”.

Mr Carrie discovered the posting about four hours after it was made. Although it was in his power to remove it, he did not. Instead, he posted a response to the original posting, which remained there so that his reply could be read “in context”. He then brought libel proceedings.

Consent

It is a defence to a claim of libel that the claimant consented to the publication. The court held that, by leaving Mr Tolkien's posting on the site, Mr Carrie must be seen to have consented to its continuing publication. Therefore, the claim must fail as from the point of knowledge. But could there be a claim in respect of the period prior to Mr Carrie’s discovery of the blog item – i.e. the first four hours?

Publication

As a general rule, the claimant must first prove that the words complained of were published and read by third parties within the jurisdiction. The internet is treated differently to publication in a newspaper or a book – it is necessary to show that the words were actually accessed or downloaded (rather than simply printed or distributed).  Courts have ruled that there is no automatic presumption that posting material on the internet is automatically publication in England.

Mr Carrie had only asserted that the posting was accessed "by a large but unquantifiable number of readers". He had not produced any evidence about the numbers and identity of people who viewed the page in the first four hours. The court was not persuaded that there was any substantial publication and therefore concluded that the claim should not be allowed to continue.

Comment

This seems a correct and sensible decision in the circumstances. The claimant (who was not represented at trial) does not seem to have been clear about the necessary steps in proving libel.

But what practical lessons can be drawn for website operators who allow visitors to post their views?

1. If you think something is defamatory to you (or your client), consider early whether you might want to take action against a poster. And take the posting down!

2. Because the knowledge of employees and agents may be ascribed to the website owner, you should put in place procedures and training for those charged with reviewing or screening postings. Consider drawing up a content policy. This is particularly important for a moderated website where postings are pre-vetted prior to publication. It may be the case that the operator will not later be able to complain where postings have been previewed by its own people.

3. This case appears to follow a general trend we have noted towards greater difficulty for claimants in defamatory statements made in online environments. See, for instance, our note on liability for bulletin board postings.

4. In order to bring a claim in England, it is necessary to show substantial publication in England – that the defamatory statement was actually accessed. It will help to have login information of readers, if the site is set up in this way. Otherwise, it will likely be necessary to collaborate with your internet service provider (and inevitably other ISPs) in order to ascertain the identity and location of readers.


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