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Waterfront Partner Perversity Shocker!

Feb 17, 2012

Last week Guido Fawkes called it perverse.  He was speaking at the Leveson Inquiry into culture, practice and ethics of the UK press.  But he wasn't passing judgement on the morality of phone hacking.  Nor was he berating certain newspapers over their casual disregard for the intellectual property of others (more about that in a future post).  He was commenting about the decision in Kaschke v Gray and Hilton [2010] EWHC 690, [2011] 1 WLR 452.  This was a case that I had argued for two days in the English High Court before Mr Justice Stadlen.  So had I wittingly or unwittingly persuaded an upstanding member of Her Majesty's judiciary to stray from the path of moral or legal rectitude?   As many will know, Guido Fawkes is the nom de plume of Paul Staines; the famous Internet blogger and scourge of Westminster politics.  He had been called before the Inquiry to give evidence on  the extent to which restraints on conventional publication no longer make much sense in the Internet age.  He recounted how he could in part thwart an English court order by posting material on a Yahoo server in India.  He also declared: "I’m a citizen of a free republic, and since 1922 I don't have to pay attention to what a British judge orders my countrymen to do” .   The churlish might suggest that the second of these comments is questionable if you spend a large amount of time in the United Kingdom.  I have had the pleasure of meeting this famous blogger on a couple of occasions. The last time was in the north London suburb of Hampstead;  many of whose residents have called for a republic but few of which have demanded independence.   But the point is that Paul, a.k.a. Guido, is a man who does not mince his words.  And yet during his evidence before Lord Justice Leveson, the only thing that he claimed had reached the heights of  "perversity" was the law following the Hilton case.   In particular, he complained as follows:  

“if we pre-moderate  comments on our website, we become legally liable for them.  So the perversity of the law is that if we intervene and moderate comments, then we assume some liability.  If we do nothing, we're not liable.  That's from a case, I think Hilton v Kaschke”

  As a statement of law that is pretty accurate.  The E-Commerce Regulations broadly provide someone who hosts a third party post on his website with a defence to a defamation claim  if he does not know about or participate in the creation of that post, provided that once he is aware the post contains illegal content he "expeditiously" removes it.   I had acted for the operator of a website for Labour party supporters.  He was being sued in relation to a post placed by someone else on that site.  I argued that that the mere fact that automated software had presented this third party material together with the website operator’s own material did not prevent him from relying upon the "hosting" defence.  If anything was perverse (or “absurd”, as I put it), it was any suggestion that this automated presentation, combined with the fact that from time to time he might remove offensive posts in response to a complaint, stopped him being a host of third party material and turned him into an editor of content he had never seen.  That argument succeeded and the decision remains the leading case on this question to this day.   To be fair to Guido, I doubt he was claiming that the outcome in the Hilton case was wrong.   What he was claiming to be perverse was that a person who takes more care over third party content on his site is more likely to be liable than one who does not.    Should not the person who takes such care have at least equal protection to the person who doesn’t?  Although at first sight attractive, it is nevertheless a controversial proposition.    If a newspaper were to decide to publish a letter that contains defamatory material, English law makes it clear that the newspaper as well as the writer of the letter may be liable under the law of libel.   Is the fact that the comments appear on a website any different in principle?  Or is Guido arguing that the newspaper should have free reign to publish whatever third party material it likes?   Nevertheless, the current law does leave operators of a website that allows third parties to post comments with a stark choice.  Do you moderate, review and control the third party content that appears on your site, perhaps to make it a safer and more pleasant place for Internet users to visit, but increasing the chances that you are liable for what is written?  Or do you adopt a hands-off attitude; only intervening when problematic content is brought to your attention?