Hello and welcome to this webinar entitled Online Defamation. Avoiding the Pitfalls, Part two. My name is Keith Market. I may qualify Celester with a background in dealing with these sorts of issues these days. I do what all the freedoms, training and consultancy work in these areas. Therefore, I'll be taking you through this topic today. We'll get three things you can see from our agenda issues around jurisdiction, mostly looking issues around limitation, period. But most of all, we're gonna work issues about who the defendants are in these sorts of online defamation actions on what defenses air available to them and how the courts attended to apply those in the park. So we begin with the issue jurisdiction now. Often, if we are involving overseas parties in one form or another, and we'll see a particular case glacial involving Google. There is an issue about whether our courts will actually accept jurisdiction, whether they will grant an order for service out of the jurisdiction. And although we don't want to get caught up too much in the CPR today, it's inevitable that from time to time in online defamation action, you will come across this Now the leading authority on this is the case, as you can see from 2005. Still good law called Appeal decision off Jameel and Bell Jones. In this particular case, you have to US based parties both claiming undefended. The defendant makes various allegations that Mr Jameel is involved in al Qaida and essentially publishes an article on there US based website, which is an access by subscribers off There's in the UK, albeit a very small number, as we'll see on the question of the court has to us in deciding whether they're going to go any further with this is the question you see at the top of the next slide has a riel and substantial talk. Being committed within the jurisdiction is one of the many jurisdictional gateways, one of which must be present for our courts to make a on all of a service out. Three questions are raised in this particular case. Is it at the case that those reading the arts feel about the claimant needed to have prior knowledge of you? The claim it waas the views? No, it doesn't. Secondly, where this publication actually take place is a U. S based website is being read in some cases my British or English located organizations or individuals. The key thing to note here is that the place of publication is wherever the article is red. So it has been published within England and Wales in this particular context, according to the court. But the key thing that is to say, we're talking about a real and substantial taught What's the significance of the publication now? One of the key consideration? Siri's. How many people are actually ready as we'll see short? It's not the only consideration. With one of the key considerations on this occasion. Around about five people in this jurisdiction have ready at least one, if not two of whom were members of Mr Jameel is immediate family. So the circumstances. The court ruled that there was not a real and substantial talk being committed in this jurisdiction and therefore dismissed the claim. Now don't twist on that for the next case you see on here cans and moody. Here we have a New Zealander suing somebody who is based in India. On essentially the New Zealand there is. Chris Kanzi was a test cricketer in his day. He was involved in the Indian Premier League cricket on Essentially, you see here that Mr Moody, the defendant, made various comments about Mr Cans by way off tweet. So he starts off by saying this. Chris Cans removed from AIPO auction listed ages past record in much fixing the by the government Council clarifications are requested by various journalists. He makes the following comment. We have removed him from the list for alleged allegations sick as we have zero tolerance of this kind of thing, the Governing Council's decided against keeping him on the list. Now Cans alleges, in the light of all the things that we've talked about in the first section, which I'm not going over again, but ultimately that is a defamatory statement about him. And he wishes to sue Mr Modi here in this jurisdiction. Now MODY refuses to accept jurisdiction and therefore cans comes to the English court with a view to persuading them to grant order for service out of the jurisdiction on Mr Justice Tugendhat. Here's this particular hearing and he looks at how many followers Mr Modi has got in this jurisdiction looks at the effects of Retweeting and the reality is not many people are actually ready. However, the key thing to note is, it's not just about numbers alone. The court always always look at the idea off connection to the jurisdiction might have that phrase. So the circumstances they take the view that Kansas actually got quite a strong connection to this jurisdiction because he's lived in his work here. His Children have been educated here, and also he may well come back and retire here. What day? And therefore the view is that England Wales is an appropriate place for this matter to be heard. The grand jurisdiction. There is then a hearing. Ultimately, Kansas successful wins damages even on an aggravated basis against Mr Modi because of the way movies Council conducted the case. Ultimately, though, cans in his barrister believe it are actually tried for perverting the course of justice. Indeed, perjury before the Crown court so that Crown Court in London to do with the testimony that's given by Cans and a narrowly acquitted. So the whole thing loses slightly bad taste in the mouth at the end of it. But in terms of jurisdiction, you see, it's a good example not just about numbers connections in the jurisdiction alone. You have a New Zealand that they have an Indian gentleman. Tweets allayed. Some of them are red in the in England and Wales. That's enough, the court says in the context of this particular case for the court to grant jurisdiction. Now, since that case went through, we've had the Defamation Act 2013. I'll be mentioned various aspects of that fairly shortly. The first, although, is to do in jurisdictional issues just to supplement what we said there about this cans on Moti case. So he things. You notice this section applies to someone who's not domiciled in the UK in the example of just given that we grow cans on mundi. What's the rule then? A court does not have jurisdiction to hear on determinate action to which this section applies, unless the court is satisfied that of all the places in which this statement complained off has been published, it was not just in England and Wales. Quite clearly, England and Wales is clearly the most appropriate place in which to bring an action in respect of this statement. Now, the circumstances I'm not convinced that would necessarily change the outcome of the cans and Moody case, but just worth noting and bearing in mind that now there is a little bit more support. There are a little bit more of a question, perhaps better said, in terms of whether England Wales is the appropriate jurisdiction. Now, if you know you're on this, you'll know that there are various considerations about proper forum on. So So False is really a codification to extensive what the law already is, albeit with a specific reference to deformation in this case. So that, then, is a discussion about jurisdiction. Let's move on. Let's talk very briefly about limitation periods. Now The old rule was what we call the single publication role. And in fact, that role continues but has been amended slightly by again that the Defamation Act 2030 so price in a Defamation Act 2030. The Rules with regard to limitation was solely found in the Limitation Act 1980 a respective defamation of you Waas that the cause of action a cruise on the date of first publication on runs for one year absolutely clear about this one year time limit from the date off first publication that was relatively easy to police when to use the age old on a hackneyed phrase. Today's newspapers, tomorrow's fish and chip wrapping, and that was ever going to read it to get. Of course, the Internet has blown a massive great holding that right here because articles could be available on the Internet for years and could be easily linked from other arts. Was that folded? And so what was the effect of that? Because prior to the change that we're about to see with regard to Section eight of the Defamation Act 2013 the view was that first publication could be interpreted as every time it's available on the Internet, rolling every day that the article remains visible, it rolls and rolls and rolls of new time period begins in a new time begins. And so that was the concern that has now been dealt with fairly satisfactory by Section eight off the Defamation Act 2013 which indeed talks about data first publication and then for a year, and then picks up on the point of our ongoing publication and effectively says, if subsequent publication IE on day, two day, three day, four day five day 365 is a substantially the same material, then it's simply from the very first date. However, if it's presented in a materially different way that essentially we can have some sort of rolling defamation period, it doesn't bring it play now, in terms of deciding whether something substantial the same are materially different. They look at the prominence of the statement, and they just look at the extent of the publication as well. However, the reality is, if you've got an article that's on a particular website, newspaper websites, the best example on that article stays on there pretty much on touch, maybe quality of corrections to details, perhaps sometimes or footnotes. And that will be substantial, substantially the same subsequent publication on We don't have a rolling Type period. If, however, some of the allegations in a first article are pointing to a second article with additional content, it may well be that's a new example of first publication, and therefore we wouldn't have that rolling time period in the circumstances, so you should call incense but ultimately be aware that it's not entirely have been ended. Now, thanks to Section eight of the Defamation Act 2013 right, that's going on the war, but by let's spend a bit more time talking about who the defendants are, and particularly what defenses air available in respect of deformation on, particularly with the North to online defamation. There are three possible defendants with regard to an allegation off online defamation, and you see them there on the slide. The author, now who could not be there, could be the author of a foreign post a block post on article. Facebook posts tweets as we have seen that these characters are often very small fry. There might be exceptions, like Katie Hopkins, as we saw in the first session, but generally they're small fry, and you don't tend to perceive those individuals off. You are much more likely to pursue the website operator on nor the hosting company that makes the website available again. The website operated could be potentially. It may just to right itself into Facebook and Twitter, and we'll see Google as well, essentially coming into this later on. But the key thing to notice that we're talking more or less a it's a football club or let's say with a good example, is an organization that talks about you know, women's issues or particular religious group or whatever else happened to bay, they may well be the website operator per se, and they actually may be quite prepared to fight an allegation off deformation because they're invested in that particular time off issue and will stand their ground. However, the hosting company typically has no interest whatsoever. All they know is that if they're informed of this as we're about to see, and they take no action of a prompt nature, they can also be found responsible for defamation as well. If you want to try and bring down some 40 family content, look for a polity behind the scenes with no investment in it and go off to them his best year camp. And so we come back to Google in a minute where they might fit with this. Because there's an interesting case about Google being a publisher or not always part platform floozy defendants. Then we move on briefly to defenses. There are a whole lot of general defenses, which I am not going to talk about today. I want to focus on the online angle of this. You see there, for example, set out in Defamation Act 2013 basically codification off the existing case law. Truth, honest opinion, public interest, peer reviewed articles, privilege reports so that co defies and indeed repeals a number of previous statutes. You may recall. At the end off the last session, I talked about the Defamation Act 1952 that applied, in that case of Stocker and Stocker that is repealed by this and going forward, that particular defensive justification no longer exists. But truth, an honest opinion are probably the two most significant at the generic level now posted outside their spokes on three specific defenses that have a particular relevance in the on line spear. And they are, as you can see, Section one of the Defamation Act 1996 Regulation 19 of the E Commerce Regulations 2002 and finally, Section five of the Defamation Act 2000 and 30. So let's take each of those in tow. Let's begin with the Defamation Acts 1996. Now the key thing to note is there are three requirements on this page. All three must be satisfied for the defense to work. If any of them are missing, the defense will fall as we'll see in a bit later on Section 11 a. That the party who is the defendant is not the author, editor or publisher. Often you've just seen examples of those might be in a moment a moment ago, furthermore, that they took reasonable care insurgent publication on they did not know or have no reason to believe that what they did cause or contributed to publication of a defamatory statements. How does that work? Well, let's take the first of those. I look at the next slide. You will not be considered to be an author, editor or publisher. Where you're only involvement is either of those two things there that are particularly relevant within the online spits. If you look at 13 C processing, copying, selling electronic medium on which the state is recorded, or providing equipment to facilitate this that is likely to apply Senator Ice Piece hosting companies on the light, possibly to Google and two others in that particular context also may well apply to an extent of website operators, albeit a little more difficult for them. And he got 13 alternatively, operating or providing access to communications system again, mostly Cos Ice piece, Google, Facebook, Twitter the sorts of characters on there on the cusp of this, because that's arguably all that they do. The thing is, though, is not just enough to say we fall under that you've got to satisfy the other two parts of the test. And to do that there is there a series of further considerations which you see on the next slide. So irrespective sections 11 B and one wants see to prove that you are compliant with these, you fall back on the factors in section one, subsection five that you now see on this next slide in determining for the person this section whether a person took reasonable care 11 B or had reason to believe that what he or she did caused or contributed to the publication of defamatory statement one won't see. Look at these three things extent of responsibility for content of your nice p. You say I know responsibility for this whatsoever. I just made this available. I wasn't involved in looking at this, and sorting this out on that can often be quite a bone of contention. Is that the actual role of the organization Was it significant? Was it minor that they crossed the line at some point again? That's all up. The discussion is we'll see shortly with Google. In particular. They look at the nature or circumstances publication of the previous converts or character. And the thing that comes out, particularly from being see, is Were you made aware of these allegations? And if so, what did you do about it? If you were dilatory in your response, you may well, and that being criticized as we'll see a little bit later or now, this particular defense led to a very famous case which you've seen the next slide, which is called Godfrey and Demon and that led to the development of the so called doctrine of notice and take down, which, whether you are specifically familiar with that or not, you may well mentally be thinking. Well, that's what I do in practice. The girlfriend, the works like this. We got a nice P now they actually operated news service they receive, and they store in article this allegedly defamatory of Mr Godfrey that also is posted on the same form alias. And finally, what happens is this Godfrey does advise them that he believes this article to be defamatory, asked them to remove it, and they take 10 days to do it now. It's very difficult for Mr Godfrey to identify the individual behind this, and therefore he sues. Demon is, as you effectively become a publisher because of your dilatory response to my complaint. The only defense available at the time for Demon wants the warm We've been talking about Section one off the Deformation at 1996. The judgment then of the court is, has followed. The judge rules that Section 11 has been satisfied. We go back to those considerations about making it available on several. However, it's not just about 11 a is. It's also about one won't be on one won't See on the Court takes the view that because they were made aware of this, I also needed very little about it 11 b of one once he have not been satisfied and therefore damages of 15 1 5000 are awarded. But the biggest thing in the tail is that costs off. £250,000 are awarded Now. Since that case organizations have been quite clear that often. If they receive that sort of complaint, they will not sit on it. They will not ignore it. Instead, they will go through and notice and take now procedure. Because the clear implication is this particularly here in I S P and to an extent of your website operator. If you are informed of this and you immediately take it down, then you're unlikely to be on the hook for being liable for the content of that post or that article that bloke hosting or whatever else it happens to bay. I wish what you asked me if you got the sense notice and take down procedures. How much time I forgot? There's nobody knows. I would say 24 hours, probably. Okay, what should be shorter, possibly slightly longer if you leave it for, say, 10 days has happened on this occasion, you are likely to fall foul of these rules. The last one defense. There's another defensive a lot better. So you wanted to take a moment to look at Regulation 19 of the e Commerce Regulations 2002 on. Ask yourself what's the difference between this and Section one of the Defamation Act 1996 and particularly when I look at a one for about So the key differences to read out a warm the service provider, the I S P, in this case does not have actual knowledge off unlawful activity or information. That is a hugely significant statement over amount to apply that through a particular case that looked at that and gave a bit more guidance about it. So let's tell them to look at this important case of time is in Google Still good law, still good in terms of the interpretation. Or here is a publisher, but also about section one and also about Regulation 90. That's to stake a few minutes to talk about this particular case. It all comes down some block posts that were made about Mr Tavis suggesting that he was a drug dealer and involved in various of the unsavory activities, their arm or log posts than that. About half a dozen of these that were made it we're not going on to the next time we'll see the timeline that goes with this they're made on the 28th of April is you can see he notifies Google, and by the way, Google provide the blogger platform. So he comes to Google. People do nothing about this, for you can see practically two months the which point Mr Thomas sends a letter of play. And then, about a week later on Google, do respond. Just asking for further information, Mr Thomas responds on the same day. And then, in the light of that good will take another 10 days or so to consider this. They do nothing about it. Thomas complaints further about other block posts. Google then finally get around to advising the blogger on the post. Disappeared Look at the difference in time, then between when it was first notified of when it was removed. We're talking at least three months off a bit more. 3.5 months. So there are four key issues in this particular case. WAAS. Google, a publisher, did section one of the deformation at 1996 supply and thereby give Google defense. Did Regulation 19 of the Commerce Regulations 2000 to apply and thereby give Google defense on Remember, because it's Google, we're back to our favorite discussion about jurisdiction. From the beginning of this session, Waas, a riel of substantial talked committed in the jurisdiction. So we'll follow through the line of those four things as they set out on that slide. Or Google a publisher, while the high court effectively says no why, I want to have a look at what we've got here. Significant factor in the evidence that Google is not required to take any positive step technically, in the process of continuing the accessibility of defending material, whether it has been notified of a complaints objection or not, I would be prepared to hold. It should not be regarded as a publisher or even the one who authorizes publication of the common law. All they do is, you could see is platform provider passive role, therefore, not a publisher, Since the high court, the Court of Appeals will see takes the differ. And it says this by the Bloggers service. Google provides a platform for blocks. There was a related service to enable the display of adverts on a block, makes the service available in terms of his own choice, can readily removal block access to any blogged that does not comply with any of these terms and so defines the limits of permitted content as the power and capability to do something about it. On that basis, the Court of Appeal say they're not such a passive entity. They're more active. Therefore, they are a publisher in the circumstances, and that's actually quite significant, because price in this case through is the general view is that probably worked here. The view is the even though they are perhaps slightly well behind the scenes, they all could be all still a publisher. So well, what? I look at that in more detail. If you're interested in this issue, Okay, says the cool to see when they are a publish, it can. There alone. Section one well again, Back to the high court. The high court ultimately say they agree that Google's responses you could see waas So what billitteri but would not consider it to be outside the bounds of a reasonable response. Interesting. No suggestion Any relevant knowledge, predation, notification and so on. Key thing to them loads is I think, that Google would have had reason to believe that the relevant call it was defamatory. Fair enough. But that is far from saying. On the other hand, they would have known or had reason to believe that Google themselves have done anything to cause or contribute to the publication. Now again, the Court of Appeal disagrees. You see them on the next flight. What do they say? The relevant question is whether it can be said that in the period after notification moat that you did not know and have no reason to believe that what did caused or contributed to the publication. Ultimately, the view is that they didn't become a publisher of defamatory content because ultimately they had a certain reason to believe that now you could read the detail about later on. But ultimately, the court rules that Google have no defense on the Section one off the Defamation Act 1996. However, whether they do it, they don't regulation 19 of the e commerce regulations is only commented on in the High Court on their call it repeal Don't deal with it because they clearly seem to be happy with what the high court says. The really important thing here is what is said in this case about Regulation 19 that the judge begins by quoting from a particular reference work and says, In this particular context, I'm gonna read all of this out of this important. Suppose, for example, a host knows it serve. It contains information imputing that an individual is guilty of a serious crime but knows no facts or circumstances bury one way or the other on the truth or falsity of that imputation in these circumstances seems likely the host would be entitled to rely on the Regulation 19 defense. The host does not have actual knowledge that the information is unlawful and is not aware of factual circumstances. And so and this is the distinctions in Section one on Regulation 90 we can all be aware that allegations have been made. We could all be aware that if that turns out to be true, then that will may well be defamatory. It's about the actual knowledge, and that's why Regulation 90 will almost always work on the part off a defendant. In this particular context, to the extent that it is applicable on the court, then continues with its observations. It may be thought by Mr Thomas to be implicit in his complaints that he was denying outright any allegation of theft or drug dealing. But it cannot be right that any providers required in the light of the strict terms of Regulation 19 to take all such protestations at face value. Clearly, Maura's required for provided to acquire a sufficient state of knowledge to be defied off the stategy protection. That's a hugely significant point. It's not enough that's able to complain to you. They have to go further than that now. How much further? Of course the court least tantalisingly dangling in front of us with regard to this. If you are acting on behalf, the claimant you're gonna need mawr than you were told that there was a complaint is going to need to beam or so forth investigation going on, or decision of a competent court, perhaps, or something of that sort that will be necessary to make it clear that they've got actual knowledge. Now the case is actually, believe it or not, not deciding on any of that is decided on the final point back to our jurisdictions, we come full circle and begin to wrap up this particular sanction. Was there a riel and substantial talk in the jurisdiction? The view is there was not now. I'm not gonna read through all of that now, but also what you'll see on the third line. Numerous of the comments were in the chain of discussion, and therefore the comments that were made about Mr Tummies receded into history. The Gold says follows, as the judge clearly had in mind at the end of the paragraph that any damage to the appellants reputation arising out of continued publication off the comments during that particular period will have been trivial. And in those circumstances that just was right to consider. The game would not be worth the Campbell on that basis alone. Miss Claims Thrown out. But it's hugely significant in terms of saying that Google potentially is a publisher who will struggle to rely upon Section one but almost always would be able to rely on Regulation 19. And that's the lesson to take away from this section. One is not the better defense. Regulation 19 is the better defense. If you're writing for a claimant and you think that someone is lying to raise a Regulation 19 defense, you need to make sure you go very well laden with evidence to suggest that they did other actual knowledge in the circumstances rights. One final thing just to make sure that website operators don't feel left out. There is an hour specific website operators Defense Section five of the Defamation Act. It is a defense for the operator to show it was not the operator who posted the state. Now you might think I was easy until extent. It is but Paul to use on the next Floyd, the defense is defeated. If the claimant shows that it was not possible for the claim, it so identify the person who posted this statement. The claim that gave the operator lucid complaints on the operator failed to respond to the notice in the correct way. Now I have to say what follows is an extremely complex series of procedures. I have truncated it considerably for you on one slide that says this. We have the complainant's who contacts the operator, the operator, and this is not the ice piece. The organization. Let's say it's a football club or the religious organization or whatever else happens to be. Operation has 48 hours to pass on the complaints of the poster and ask them to change their ways, either to remove it obliterated or to provide their details so that the poster could be sued directly by the complainant. The Post has five days to response, and then when they do respond or if they fail to respond within five days, hopefully still with May, the operators got 48 hours to respond to the complainant, advising off the operators details or advising Ultimately, that they themselves the operator, have now remove this content. Now let's cut to the chase on this because we come into the end of the session. I don't think that works or is. It can work, but it's hugely complex, and I'm not convinced most clients with stick to it. So you want my personal advice on this? I would ditch this. I wouldn't use it if I was advising a website operator, I would go back to simple notice and take down on, Say, simply, make a choice. Why did you decide to defend this? Using some of the generic defenses that we've talked about with regard to sort of truth in opinion. And so when she may wish to do so, or you effectively take it down straight away. Did you take it? Now? Straightaway, you can potentially rely on Section one of the deformation at 96 on door Regulation 19 of the e commerce regulations. That is a far better option in practice than relying on this convoluted defense that exists there. So summarizing that we have seen that we need to watch out for jurisdiction depend on who the parties are, maybe relevant may not. Numbers alone, not everything. Connection to jurisdiction and all the usual context about limitation. We've got the issue of first publication and subsequent publication, which I think is very straight forward. But it says the defense's note that most useful is Regulation 19. But if you're looking to rely on Section one of the Defamation Act, the longer you leave it, then the bigger problem you're actually going to have to rely upon that. Finally, as I've said, the website operated defenses. There were, frankly, not a great deal of use, in my opinion. Right. Well, that's what I want to say for you for today. So thank you very much indeed for your contention speech again since I'm the future. Thank you. Have a good day
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