Mumsnet Case Raises Issues Of Responsibility Over Blog Libel
Tony Jaffa, media specialist at Foot Anstey who represented Gina Ford, the baby care specialist, in her libel claim against Mumsnet, a parenting website, writes on the implications of the action, which was settled last week by Mumsnet apologising to Gina Ford, and paying a contribution to her costs.
Readers will have seen recent publicity surrounding the settlement of the libel action brought by the baby and child-care author Gina Ford against Mumsnet, the parenting website.
Had the case proceeded to trial, it would have raised a number of tricky questions, not least whether a website is a “publisher” for the purposes of the law of libel.
Gina Ford is a highly successful author, and has published a series of very popular books on baby and child care throughout the world. Her methods and advice attract intense support and opposition, probably in equal measure.
Mumsnet Ltd runs a parenting website, which hosts a chatroom through which its members post messages on virtually any topic they like. Mumsnet has tens of thousands of members, and says that they post 15,000 messages or so each day.
At this point, let me declare an interest. I advised Gina Ford throughout. Mumsnet consulted Mark Stephens, who is well known in this area of the law.
The dispute began about 15 months ago, when some of the bulletins shifted from discussing (and criticising) Gina Ford’s methods and advice, to becoming personal attacks on her character. Pretty soon, it seemed clear to me that she was being libelled on a regular basis.
Initially, the website denied any responsibility for the actions of its members, and only after 12 months of argument, discussion, negotiation, and the issue of a Writ, did Mumsnet settle the dispute by apologising publicly to Gina Ford and making a contribution to her legal costs.
So what were the issues?
They all boiled down to these questions: is the proprietor of a website legally responsible for defamatory material on its webpages, even if that material is written by a third party in a web chatroom? Or do those who run websites have special treatment under the law, so that they do not have the same responsibilities as traditional publishers?
To me, the answer seemed clear – S.1 of the Defamation Act 1996 provides a website proprietor, like every other publisher, with a defence to a libel claim if it can satisfy all of these tests:
- the website was not the ‘publisher’, as defined in S.1
- reasonable care was taken in respect of the publication
- the website did not know, and had no reason to believe, that it was causing or contributing to the publication of defamatory material.
I found it difficult to see how Mumsnet could avoid being held to be the publisher, which in turn would mean that on ordinary principles, it would be liable for defamatory material written by its members - unless it could protect itself by relying on the well known defences of justification or fair comment.
The settlement means that we will never know the answer to these questions. But it has been interesting to see how Mumsnet and its advisers have dealt with them post-settlement.
The principal shareholder of Mumsnet said in The Times newspaper that "it’s not clear how far a site is protected even if they take down controversial material”. And one of Mumsnet’s solicitors said elsewhere that S.1 of the 1996 Act does not provide “very clear guidance in an age when providers host chatrooms are awash with heated debate”, particularly given “the sheer volume of comments and the logistical problems of the notice and take down practice”.
I understand the argument that our libel laws should recognise that the internet has changed everything, and what was good enough in times gone by is not appropriate for the digital age. Perhaps the time has indeed arrived for the legal position of all publishers to be reviewed.
But I disagree profoundly with the proposition that the law should treat websites and ISPs preferentially compared with conventional publishers. I can see no reason in principle why this should be the case.
And to rely on the volume of posts, and the logistical problems they create, to justify giving websites and ISPs a special status under the law, seems to me to be fundamentally wrong and unjust.
Far from liberating publishers, authors and citizen journalists, tinkering with the law to grant special rights to some publishers and not others, will simply impose an unfair commercial burden on the latter, and effectively undermine freedom of expression rather than enhance it.
Published 16/05/2007.
