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Thursday, March 02, 2006

Litigation: Blogging all over the world

[Via Virtually Islamic]

The rapidly growing popularity of weblogs presents new dilemmas about how to determine legal responsibility for online content
lyndon branfield
At its simplest, �blogging� involves an individual maintaining and updating an online diary � a weblog. Many are personal and intimate, but others have public or political intent and have become astonishingly influential. The success of the medium has tempted commercial websites to join the bandwagon to attract users. It is not unusual for mainstream online publishers to offer links to independent blogs, or to publish their own. But since the very nature of blogs is that they should be personal, irreverent, even iconoclastic, publishers must consider carefully the potential legal pitfalls involved.

The underlying principle of online publishing is simple: all the same legal constraints apply as in print. Within this framework, however, the law is complex � in crossing any number of jurisdictions � and evolving quickly.

State of origin

Currently, online content is deemed to be published where it is downloaded � and not necessarily where it was uploaded, edited or released for publication. This view dates back to the influential case fought in the Australian courts in 2001. The case, Gutnick v Dow Jones & Co, revolved around Joseph Gutnick, a businessman, who accessed an article he thought was defamatory and caused damage to his reputation in Australia. The article was published online by Dow Jones in the US, but accessed by Gutnick in his native Australia.

Dow Jones tried, unsuccessfully, to persuade the court that it would not be practical to impose global defamation laws against all content that is to be published. The court stated: "If people wish to do business in, or indeed travel to, or live in, or utilise the infrastructure of different countries, they can hardly expect to be absolved from compliance with the laws of those countries. The fact that publication might occur everywhere does not mean that it occurs nowhere."

Heavyweight contest

Fears that this would open the floodgates to unbridled �jurisdiction tourism� were reinforced in King v Lennox Lewis. Don King, a US-based boxing promoter, issued proceedings in the UK for defamation against the defendants � a boxer resident in the US, his US promotion company and his US attorney.

The claim arose in respect of defamatory allegations made against Don King on two US boxing websites accusing him of anti-semitism in July 2003. Given the global nature of the internet and Mr King�s fame in the UK, he chose to sue in the UK, but obtained permission to serve the claim form in the US.

The defendants appealed, saying the action should be brought in New York and would give King an unfair advantage if it were allowed in the UK. The Court of Appeal found that the judge was correct to view each instance of accessing the article as a separate tort and, where the article had been downloaded in the UK, the starting point would be the UK. This issue may have been less important if King did not have a significant public profile within the UK.

Forum shopping

The concern regarding �forum shopping� has been tempered by a 2004 Canadian case, Bangoura v Washington Post & Others. The Ontario appeal court refused to assume jurisdiction in a case relating to online content from the Washington Post. The basis for the refusal was that, at the time of publication, the plaintiff � Cheickh Bangoura � was living in Kenya, but moved to Ontario and started litigation proceedings more than six years after the initial publication.

The court found that Bangoura had "no real and substantial connection" to Ontario, meaning that his assumed residency was insufficient for the court to found jurisdiction. In deciding in the publisher�s favour, the court stated: "The connection between Ontario and Bangoura�s claim is minimal at best. In fact, there was no connection with Ontario until more than three years after the publication of the articles in question."

The court found that there was no evidence of significant harm in Canada, as only Bangoura and his legal representatives had accessed the story there. On 16 February, 2006, the Supreme Court of Canada conclusively ended Bangoura�s attempt at �libel tourism� by dismissing his application for leave to appeal the appeal court�s decision.

The issue of jurisdiction in internet libel cases is probably far from over, although the Bangoura case, as with Gutnick, is likely to be taken into consideration in other Commonwealth jurisdictions.

Making links

Where the law becomes more complex is on the issue of material referred to or linked to by a website, while not under its direct control. And here, the position taken so far in the UK and most Commonwealth countries varies significantly from the approach taken by the US.

As a general rule, repeating a defamatory statement makes the person repeating the libel responsible for that content. But US law offers valuable protection for web hosts, by stating: "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The US courts have been reluctant to make foreign publishers liable for online postings, and the effect of this is that in the US, hyperlinks to (or quotes from) another source are granted a certain level of protection. This would mean that in the US, a blogger would be unlikely to be liable for defamatory comments or content posted by third-party users of the blog � or by extension, a publisher for user-generated content posted on its website.

At present, it seems that UK law is far from certain as to how far internet services that have both traditional editorial content and user-generated content can rely upon service provider defences. In the UK, repeating a libel is no defence. Therefore, publishers should be wary of allowing individuals unmediated access to their websites, whether via discussion forums, bulletin boards or blogs.

Liability for libel

So what are the risks that website publishers will become liable for libel? Although the UK is thought to be a claimant-friendly arena for defamation, such cases are prohibitively expensive.

In the case of Jameel v Dow Jones, the court struck out the libel claim on the basis that any success would be out of proportion to the costs and court time. The article contained a hypertext link to a list of people thought to give financial support to al-Qaeda. Jameel�s case relied on the implication that he had been, or was suspected of being, involved in funding al-Qaeda. Jameel, however, could only show that five users within the UK (three of them known to Jameel) had followed the hyperlink.

The Master of the Rolls said: "If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely have been worth the candle, it will not have been worth the wick." The court accordingly struck out the action as an abuse of legal process.

Whether or not bloggers can be classed as journalists, it seems that both individual bloggers and media companies will be faced with the same challenges. The US Supreme Court has said that "in the context of defamation law, the rights of the institutional media are no greater and no less than those enjoyed by other individuals and organisations engaged in the same activities".

Lyndon Branfield is legal manager at the Financial Times.

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