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'Beyond mere storage'

The judge found that Hilton "exercised some editorial control on parts of the website and in particular on the homepage".

He acknowledged that Hilton had no control over automated areas of the homepage that listed 'Recent Blogs'. Similarly, a 'Recommended Blogs' list was automated by users' votes, and therefore protected by Regulation 19. Other activities, though, were less likely to enjoy that protection.

"From time to time Mr Hilton considered whether entries appearing on the 'Recommended' and 'Recent Blogs' lists on the homepage were suitable for increasing to a more prominent position," said Mr Justice Stadlen. "Upon promotion far more detail was provided about each post on the homepage including the date, the time of the post and a preview of part of the post comprising anything from a couple of lines to several paragraphs, pictures and video clips."

These activities, said Mr Justice Stadlen, "went beyond mere storage so that Regulation 19 immunity would not be available in respect of liability for defamatory words appearing on the homepage".

Mr Justice Stadlen said that even to fix the spelling in a post could cost the host the protection of Regulation 19.

"Mr Hilton stated in terms that where a blog is promoted by him he may check the piece for spelling and grammar and make corrections. That in my view arguably goes beyond mere storage of information," he wrote. "The fact that Mr Hilton on a few occasions removed blog posts on grounds of bad language, political provocation or offensiveness falling short of defamation again in my view makes it at least arguable that the service provided in respect of those individual blog posts and also in respect of the general service consisting of making available webpages on his website for such blogs to be posted consisted of more than mere storage."

The risks in post-moderation

Hilton's lawyer had argued that, while pre-moderation of content should lose the protection of Regulation 19's safe harbour, post-moderation should not – ie checking postings after they appear and removing any that are found to be offensive. Otherwise, said Hilton's lawyer, it would give operators of websites which host blogs an incentive not to monitor their sites with a view to removing offensive material. That, he said, would be contrary to the policy in Regulation 19 of encouraging the expeditious removal of information whose storage is unlawful.

Mr Justice Stadlen was unconvinced but declined to answer the point.

"This latter argument does not seem to me well-founded," said Mr Justice Stadlen. "It fails to distinguish between material which is offensive and material which is unlawful such as to give rise to liability for storing it. Moreover Article 15 of the E-Commerce Directive explicitly prohibits Member States from imposing a general obligation on providers of services ... to monitor the information which they transmit or store or a general obligation actively to seek facts or circumstances indicting illegal activity.

"However the question whether the removal by a service provider of a blog on grounds of offensiveness or political content is in itself enough to prevent his storage of that blog post from consisting only of storage and thus sufficient to withhold Regulation 19 immunity is not one which it is necessary for me to decide," he wrote.

He said that was because there was no suggestion that post-moderation for offensiveness took place with Gray's post.

Hilton said that he neither read nor promoted Gray's post prior to the complaint, though it did feature in the 'Recent Blogs' list on the homepage. Mr Justice Stadlen said that, if true, he would likely enjoy the protection of Regulation 19. But he said it was for Gray to establish his defence at trial. There was a chance that his argument would not be accepted in a full trial, said Mr Justice Stadlen, so a trial must be heard and he could not throw out the case at this stage.

Mr Justice Stadlen also considered whether or not Gray was acting under the authority or control of Hilton, which would remove Hilton's right to an exemption. He said that there was a chance that Gray's blog could be considered under Hilton's control, and that a full trial should be conducted to decide this.

Struan Robertson, a technology lawyer with Pinsent Masons, the law firm behind OUT-LAW.COM, said that the ruling serves as a reminder of the risks in moderating user-generated content.

"Many sites apply some form of moderation to all user contributions for reasons of quality control, whether that's before or after publication. This ruling just shows how dangerous that is and how narrow the safe harbour may be," he said.

"Even an attempt to filter for profanities or comment spam, if done manually, involves a risk for the publisher. If you want to be sure that you're not liable for what your users say, the judge is basically saying you need to ignore user contributions completely until you get a complaint.

"That's not a new principle," said Robertson, "but it's a warning to site owners about how to interpret it. Some owners may think they have less responsibility for user comments than they really do, and they may wrongly assume that a post-moderation policy is completely safe."

Copyright © 2010, OUT-LAW.com

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

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