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 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 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.
"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 – i.e. 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."