Increased Protection For Blogging Platforms

Blogging platforms such as WordPress, Tumblr and Blogger received valuable judicial protection last week in the judgment in Davison v Habeeb & Ors [2011] EWHC 3031(QB).

The Judge, HHJ Parkes QC, addressed the question of whether providers of blog platforms could be held liable in English law for content published by bloggers.

The case concerned allegations published in the online newspaper, “The Palestine Telegraph” about the claimant, Andrea Davison. The allegations were later republished by the author and second defendant on his personal website entitled “Peter Eyre’s Space” which was managed by Google’s blogging platform “Blogger”. Davison complained to ‘Google Inc’ as the fifth defendant and requested that the material be removed. Google contacted Eyre who maintained that the allegations were not defamatory. Consequently, Google declined to remove the article, maintaining that since it operated in accordance with the laws of the United States it would only remove libellous material that was the subject of a court decision.

The Judge discussed the need “to see how relatively novel internet-bred concepts can be made to fit into the traditional legal framework.” However, it was admitted that it can be difficult to “draw effective analogies between long established modes of publication like the newspaper” and “radically novel platforms like the enormous burgeoning Babel which the fifth defendant hosts through Blogger.com.”

Despite these difficulties, the Judge concluded that “Blogger” was “analogous to a gigantic notice board” which had the ability to “take the notices down if they are pointed out to it.” In other words, liability was dependent on “Blogger” receiving notification that it was carrying defamatory material.

Nevertheless, the Judge concluded that since Davison and Eyre had given such conflicting accounts regarding the truth of the allegations complained of, Davison could not establish that notification of her complaint fixed Google with the required actual knowledge of the lawfulness of the material. The judgment states that Google was “faced with conflicting claims from the claimant and the second defendant between which it was in no position to adjudicate.”

The Judge added that had the complaint been “sufficiently precise and well substantiated, and where there was no attempt by the author of the defamatory material to defend what had been written”, a different conclusion may have been reached.

In conclusion, the more automation that a blogging platform has the more the Court is likely to view it as a facilitator rather than a publisher. The less ability such a platform has to intervene in the publication of material the less it can take responsibility for, or adopt as its own, any of the material that it publishes. In these circumstances, the Court is more likely to find that such a blogging platform should not be liable for the material that it publishes.

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