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High Court: Moderate user comments and you're liable

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A blog owner can avoid liability for user-generated content that appears on his site without being checked or moderated, the High Court has ruled. But fixing the spelling or grammar in users' posts could lose him that protection, it said.

The Court ruled that the operator of blogging site Labourhome.org could not have a libel case struck out. The site operator, Alex Hilton, had said that his argument that he deserved exemption as a service provider was so strong that a trial was not necessary. The Court disagreed.

The facts

The E-commerce Directive exempts information society service providers, such as ISPs, web hosts and search engines, from liability for the information they store or pass on to users as long as they are not involved in its creation or editing and as long as they remove it quickly once notified that it breaks the law.

The case involved a blog post on Labourhome.org by John Gray, which claimed that local political activist Johanna Kaschke was arrested on suspicion of being a member of the Baader-Meinhof terrorist group.

Kaschke sued the blog for libel, saying that although she had been arrested, she was never a member of the gang and had never been accused of being one. She said that she had been paid compensation by the government of West Germany for false arrest and imprisonment.

"[Kaschke] was never accused of being involved in terrorist activities, she was detained initially without a warrant, when a warrant was produced on the second day of her arrest it contained the possibility that she was seen near a depot that contained items which could be used possibly for criminal or terrorist activities," said her claim. "However her alleged ownership or use of the depot was never proven and neither was her alleged ownership of the said articles within."

Hilton claimed in his defence against the libel charge that, though he ran the site, he did not edit or vet the articles and should qualify for the same safe harbour that was granted to search engines or ISPs.

The ruling

The High Court assessed how far the exemptions for service providers go. It said that the fact that one area of a site is moderated does not prevent other areas of the same site from having exemption from liability.

"There is no reason in principle why the operation of a chat room should be incapable of falling within the definition of the provision of an information society service consisting of the storage of information," said Mr Justice Stadlen in his ruling.

"Thus in principle there is no reason why it should not be an activity intended to be protected by Article 14 of the E-Commerce Directive and eligible for the exclusion of liability conferred by [the law]," he said.

"It is not necessarily a bar to entitlement to the protection conferred by [the law] ... that the provider of an information society service consisting of storage of information is also engaged in an activity on the same website which is either not an information society service or if it is which does not consist of the storage of information."

The judge said that a previous case involving a newspaper publishing group and Imran Karim backed this view. A potentially defamatory remark had been made in the comments section after a newspaper article, and that case discussed whether the publisher could claim exemption as an information society service provider for one part of a page, when it carried out non-exempt activities on another part of the page.

"The user generated content appeared not only on the same website but on the same webpage as other material which was written by or proactively chosen by the operator of the website and which could not itself have attracted Regulation 19 protection, it would seem to me that [Karim's case] is also authority for the proposition that storage of user generated content is capable of attracting Regulation 19 protection in those circumstances as well," said Mr Justice Stadlen.

Hilton said that he did not read every blog post and hadn't read Gray's until alerted by Kaschke's lawyers, and so was only storing the information. The Court said that if this was the case he would probably be entitled to an exemption from liability.

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