Babies, Websites, and Libel

At first sight, a dispute between a baby guru living in Edinburgh and a parenting website based in Islington does not appear to have implications for the South West’s burgeoning IT industry, but internet publishers would do well to take note of a High Court case which was recently settled.

Gina Ford is a highly successful author on baby- and child-care, and has published a series of very successful books throughout the world. Her methods and advice attract intense support and opposition in equal measure.

Mumsnet Ltd. runs a parenting website, and encourages traffic to its website by hosting a chatroom, which enables its members to post messages on virtually any topic they like. Mumsnet claims to have 50,000 members, and says that they post 15,000 messages or so each day.

The dispute began about 15 months ago, when some of the bulletins shifted from discussing (and criticising) Ms. Ford’s methods and advice, to becoming highly personal attacks on her as a person. Pretty soon, she was being libelled on almost a daily basis.

Initially, the website denied any responsibility for the actions of its members, and refused to react to her complaints by removing the offending material.

Even after Gina Ford became my client and I began to fight her corner, Mumsnet maintained this stance, and it was only after 12 months of intense arguments, discussions, negotiations, and the issue of a Writ, that Mumsnet settled 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 it publishes, even if that material is written by a third party? Or do those who run websites have special treatment under the law, so that they do not have the same responsibilities as traditional publishers?
Well, the answer seems clear, at least to me - a website owner, like every other publisher, has a defence to a libel claim if it can satisfy all of these tests: 

- the website was not the publisher (which is given a technical meaning in the Defamation Act when websites and ISPs are involved); 
- 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.

Mumsnet retained the services of one of the country’s best known media lawyers to argue its corner. Interestingly, although he initially contended that websites were not ‘publishers’ as defined by the Defamation Act, he did not press the point.

Rather, he argued that the law (and Gina Ford) needed to recognise that the internet has changed everything. What was good enough in times gone by, he suggested, was not appropriate to the digital age. Websites and ISPs should not be treated in the same way as conventional publishers.

Perhaps he is right. Perhaps the time has indeed arrived for the legal position of all publishers to be reviewed. But what the law should be, and what it actually says at this present moment in time, are quite different issues.

Presumably, by advising his client to settle the claim, Mumsnet’s solicitor recognised that this is a distinction the Courts will not uphold, until Parliament decides otherwise.

So, although no legal precedent has been set, the message to websites and ISPs is clear: the law as it currently stands gives you no special status, and you remain responsible for defamatory material which you publish, unless you can prove that you are not legally the publisher, as defined in the Defamation Act 1996.

And just to complicate matters further, the dispute raised two further tricky questions, though again, the settlement leaves them unanswered:

• When a statement is made by a third party in a post on a bulletin board thread, does the law regard that post as a statement of fact or an expression of opinion? The reason why it would have been helpful to know the answer to this question is because an opinion can be defended on the basis that it is “fair comment”, but this defence does not apply to a statement of fact.

• If a bulletin board thread consists of dozens, if not hundreds, of posts, and only some of the posts are libellous, can the publisher argue that the Court has to look at the whole of the thread to establish what the libel is, or must the Court just look at each post in isolation?

Again, knowing how to interpret posts contained in a longer thread would have been useful, because this crucial issue will probably determine whether the website loses a claim and has to pay significant damages, or whether it can show that it has merely been contributing to a legitimate exchange of information.

In other words, the settlement of this case leaves many important questions unanswered, just waiting to be resolved by the next internet libel case.

So, as ever, a gung-ho approach to the publication of contentious material remains a dangerous pastime. Being sued for publishing material which is not even your own is not particularly attractive!

In short, be as vigilant as ever when you publish material from third parties – unless, of course, you fancy running an expensive test case which may (or may not) end up clarifying the law for this fast developing industry.