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E-Commerce defence thwarts online libel case

Struck-off solicitor clearly in the wrong game

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A newspaper publisher was not liable for user comments posted after an online article and will not have to pay out libel damages, the High Court has ruled.

The Court upheld the publisher's right under the E-Commerce Regulations not to be responsible for user comments until informed of them. Newsquest also defeated a libel claim in relation to the article itself.

The article concerned Imran Karim, a struck-off solicitor, his sister and his mother. Headlined 'Crooked solicitors spent client money on a Rolex, loose women and drink', it reported a Law Society hearing at which Karim was barred from practising as a solicitor because he stole £868,000 of clients' money to fund a lavish lifestyle.

The report appeared on the websites of a number of titles belonging to regional newspaper publisher Newsquest, though not in any print editions. The report appeared within days of the hearing taking place.

The article attracted some comments on a bulletin board attached to it.

"Perhaps rather curiously but nevertheless interestingly, the majority of the comments posted were rather in favour of the Claimant and of his family," said Mr Justice Eady in his ruling. Others were not favourable, though.

Some months after the publication of the article, Karim filed a libel suit against Newsquest, which took the article and the comments about it down.

The publisher argued in Court that it could have no libel liability for the user comments because it had taken them down as soon as it received a complaint about them. The E-Commerce Regulations, which implement the EU's E-Commerce Directive, give online publishers immunity from liability for unlawful material that they host but don't produce, so long as they take action when informed about it.

The Regulations say:

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.

Mr Justice Eady agreed with Newsquest. "It seems to me... that [Newsquest] is entitled to rely upon that defence," he said. He granted Newsquest's request for a summary judgment in its favour rather than a full trial.

He also struck out claims that the article itself was libellous. Newsquest argued that it was not libel because it was a "fair, accurate and contemporaneous report of legal proceedings", and therefore permitted under the Defamation Act.

Mr Justice Eady said that he was "quite satisfied that it is substantially accurate in its coverage".

Newsquest also argued that the user comments were 'fair comment' and that they were merely vulgar abuse and would not be taken seriously by any reader.

The High Court ruled, though, that there was no case to answer once Newsquest had established its immunity.

The ruling can be read here.

The OUT-LAW guide to UK E-Commerce regulations is available here.

Copyright © 2009, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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