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Social Media and Online Issues: Defamation and Privacy

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Social Media and Online Issues: Defamation and Privacy inbrief Social media and online issues: Defamation and Privacy Inside Claims against Online Publishers Available Defences Secondary Publishers Minimising Risk inbrief Introduction Overview Demand (“ATVOD”). The PCC only has regulatory Online publishing via social media is power over those organisations which are party By way of context and to highlight the potential now instant, free and easily accessible. to the Commission and its policies. The PCC has of online publication, in 2012 34.4% of the been criticised for its unsuitable positioning for Anyone can publish content without world’s 7 billion plus population was online in monitoring complaints made against the press. much in the way of control or the some respect. In the United Kingdom 53% of Publishers contribute to the PCC’s running costs input of an in-house legal team to the population have a Facebook account which and so the result is an effectively self-regulating veto high risk content. Such freedom equates to 33 million Facebook accounts in the industry. While the PCC can be credited with UK alone. In comparison, there are only 5.5 million and accessibility raises issues for online mediating complaints well, the action taken print readers of The Times in the UK. It seems publishers who face the possibility of against publishers who are adherent to the that increasingly more of us want to share our Commission is mild. The PCC’s ineffectiveness was claims of defamation and breach of thoughts and voice our opinions demonstrated by an area that Lord Leveson addressed as a major privacy. the 1 billion tweets posted each week on Twitter. concern in the Leveson Report. He suggested that In theory the legal risks that affect online whatever body replaces the PCC, it needs to be publishers are similar to the risks facing more robust and independent. offline publishers, for example issues around privacy, breach of confidence, defamation and Criminal repercussions harassment. However, in practice the risks for While it is widely known that there are possible online publishers are actually relatively modest civil repercussions for publishing defamatory and claims against online publishers appear rarer statements, it is lesser publicised that certain and the awards against them lower than for their activities carry criminal charges. It is a criminal counterparts in print publishing. offence to publish “grossly offensive” In 2010 there were only 7 libel actions [brought in communication and in 2012, 653 people faced the UK] rising to just 14 in 2011 before decreasing criminal charges in connection with comments again by 15% in 2012. There are a number of made on Twitter and Facebook. The Crown reasons for these low numbers. One factor is Prosecution Service’s Guidelines on prosecuting the increased scrutiny of journalists as a result cases involving communications sent via social of highly publicised events such as the phone media aims to offer some guidance as to when hacking scandal and the resulting Leveson Inquiry. an offence occurs. The Guidelines call for robust Wider use of the “Reynolds” defence (providing prosecution in a number of situations, namely : qualified privilege to the media as long as they • communications which constitute credible have acted responsibly), and increased privacy threats of violence to a person or damage to actions by celebrities, have played their part in a property keeping libel actions to a minimum. The approach of the courts must also be mentioned because • communications which specifically target an the UK courts appear to have adopted a policy of individual and may constitute harassment or working towards a US-style immunity for online stalking publications. • communications which amount to a breach of a court order Consequences of a Claim against There is a fourth category of communications which may be prosecuted, constituting those an Online Publisher communications which may be considered grossly Regulation offensive, indecent, obscene or false. However, this category of communications will be subject to In addition to facing legal action as a result of a a high threshold and in many cases prosecution is defamation or breach of privacy claim, publishers unlikely to be in the public interest. and service providers may also face disciplinary action from regulatory bodies such as the User Generated Content Press Complaints Commission (“PCC”) (which regulates publishers), Ofcom (which regulates UK There are a number of considerations that online broadcasters) or the Authority for Television on publishers and online service providers must take inbrief into account to avoid any regulatory or legal The Caching Defence in Regulation 18 is aimed Dissemination (as provided for under Section 1 of action, civil or otherwise. Currently, there is no at protecting websites that cache copies of sites. the Defamation Act 1996). This provides a defence obligation to monitor or moderate user generated The service provider will not be liable where if one can show that: content under EU or UK law, (although publishers the caching is “automatic, intermediate and • they are not the author, editor or publisher of and service providers still need to comply with temporary for the sole purpose of providing a the defamatory statement (‘publisher’ meaning injunctions). The reason for this is that the more efficient service.” To avoid liability the ISP commercial publisher) additional cost of enforcing the moderating of must act “expeditiously” upon gaining “actual user generated content is hard to justify as against knowledge” of the defamatory material, to • they took reasonable care in relation to the the risk of not doing so. However, if an online ensure that the information is removed from its material’s publication publisher or service provider chooses to moderate cache or otherwise disabled. In 2005 ‘Yahoo!’ • they did not know and had no reason website content then they assume liability and called for clarification as to what constituted to believe that their conduct caused or they must carry out their role as moderator “actual knowledge” and requested a clearer contributed to the publication of the responsibly. If they do not moderate sufficiently takedown notice procedure. Regulation 19 defamatory material then they risk becoming a possible joint tortfeasor provides immunity to ISPs for “Hosting” a website in any actions raised. containing defamatory material if: This could include processing, copying, distributing or selling any electronic medium which records • it does not have “actual knowledge of the statement. Additionally, where a person is unlawful activity or information” Defences the operator or provider of a system making • it acts expeditiously upon obtaining such the service available electronically or if they When an action is raised against a publisher or knowledge to remove or disable access to the are an operator or provider who has access to service provider for the publishing of defamatory information a communications system which makes the material, there are a number of defences available statement available, then the defence could be to them. The Defamation Act 2013, (which • the recipient of the service was not under the available to them provided that they have no received Royal Assent on the 25th of April 2013), authority/control of the service provider effective control of the editorial content. Despite provides new defences for online publishers. These This Hosting exemption is more limited than the these exceptions an individual can still be liable include the defence of responsible publication others as only “constructive” knowledge rather as a secondary publisher under section 1 of the on matters of public interest, truth and honest than “actual” knowledge is required by the host. Defamation Act 1996 if they do not exercise opinion. There is unfortunately very little guidance as to “reasonable care.” The Defamation Act 2013 also provides further what will constitute constructive knowledge. protection for service providers who host user generated content. Section 5 of the Act provides a Containing the online spread of a defence provided they have enacted a procedure Secondary Publishers and the defamatory statement to enable the complainant to resolve disputes Defence of Innocent Dissemination A case that demonstrates the difficulties involved directly with the author of the material concerned. A publisher is considered to be anyone who has in controlling a defamatory statement made This defence additional to the existing protection participated in the publication of a defamatory online is the recent case of Lord McAlpine. BBC available under the Electronic Commerce (EC statement. This encompasses both primary Newsnight aired a programme that prompted a Directive) Regulations 2002/2013 which allow publication and secondary publication where guessing game as to which MP was the subject for protection under the following: the ‘Mere the publisher has no active editorial control but of sexual abuse claims. Lord McAlpine was Conduit’ principle, the ‘Caching Defence’ and the makes the defamatory comments available to falsely accused. Abuse started circulating online ‘Hosting Defence’. These Regulations apply to third parties. Secondary publishers could include with Twitter users assuming that they could virtually every commercial website, including those ISPs such as Google Inc. The case of Christopher say anything that they liked and that they were that monetise themselves through the display of Anthony Mcgrath v Professor
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