[co-author: Matt Coleman]

Wikipedia founder Jimmy Wales completes crowd-funding this week for his latest venture: Wikitribune, a news platform that, while not affiliated with Wikipedia, applies Wikipedia’s collaborative model to journalism. Wales intends to hire ten full-time journalists to work alongside the wiki community to author, fact-check and verify articles. This, he hopes, will provide a more reliable form of media and an antidote to what he describes as “broken news”.  Wales’ proposed approach to news reporting highlights a convergence of media – and other platforms, publishers and journalists – and users. Yet granting to the masses the power to edit (and not just comment on) news articles could conceivably give rise to defamation issues under English law.

As traditional print media has largely moved towards online content, meaning that defamatory statements can be transmitted instantaneously from one corner of the earth to another, courts have been forced to grapple with a number of complex legal issues.  We explore below certain issues that typically arise under English law in the context of defamation on the internet, with Wales’ proposed user-collaborative news platform in mind.

Jurisdiction in a global world

A key issue when it comes to defamation on the internet is to establish jurisdiction for defamation proceedings.  UK courts are typically viewed as more claimant-friendly for defamation actions than e.g. US courts, including for reasons that a defamatory statement is presumed to be false unless the defendant proves otherwise.  However, if the defendant is domiciled outside the UK and the EU, a claimant alleging defamation will have to convince the UK courts to hear the case, which may not be entirely straight-forward given the attempted crack-down on libel tourism in the Defamation Act 2013 (“DA 2013”).

Yet despite the recent more stringent jurisdictional requirements, section 9 of the DA 2013 does leave the door open for such an action; it provides that the courts must be satisfied that, in all the places in which the statement complained of has been published, England and Wales is clearly the most appropriate forum to settle the dispute. “Clearly” appears to set quite a high threshold; however, provided the claimant can show that publication of the defamatory content has occurred in the UK – which in the context of the internet means accessed and downloaded to a sufficient extent – and that the claimant has a substantial connection to, and reputation in, the UK, courts here are unlikely to decline jurisdiction.

Primary or secondary publisher?

A likely further hurdle for a person alleging defamation against a user-collaborative news platform such as Wikitribune is the distinction between primary and secondary publishers.  This is because, under English law, while every person who knowingly takes part in the publication of defamatory material may be liable for its publication, an action can only be brought against a secondary publisher of the material if it is not reasonably practicable to sue the primary publisher (section 10 of the DA 2013).

In broad terms, a primary publisher is one who exercises direct editorial control over the published statements, while secondary publishers do not take an active editorial role but still make the defamatory comments available to third parties.  A platform that merely “hosts” content that is authored and edited by its users, such as Wikipedia, typically falls into the secondary publisher category and therefore could only be liable under English law if it is not reasonably practicable to sue the user who posted the defamatory statement and if the defences discussed below are not available.

However, where an entity is both producer of online content through its employed professional journalists and a platform for online user contribution, it occupies an ambiguous position in this regard.  An eventual determination by the Court is likely to turn on the facts, i.e. the extent to which the platform was involved in or oversaw the authoring and/or editing of the particular defamatory statement.  It is nevertheless clear that an entity need not author nor actively edit the defamatory statement to assume, at least in principle, liability for its publication.

Potential defences

A user-collaborative news platform such as Wikitribune may be able to rely on the website operator’s defence at section 5 of the DA 2013 to sidestep responsibility for editing by recalcitrant members of the user community: it is a defence for the operator of a website to show that it did not post the statement on the website. This defence is not available, however, if (1) it is not possible for the claimant to identify the person who posted the statement, and (2) the operator fails to respond to a complaint about the statement from the claimant in accordance with the strict procedures set out in the Defamation (Operators of Websites) Regulations 2013.

The related intermediaries’ defence under section 1 of the Defamation Act 1996 may also be available if the defendant can show, among other things, that it did not have editorial responsibility for the content of the statement or the decision to publish it, that it took reasonable care in relation to its publication and that it did not know, and had no reason to believe, that what it did caused or contributed to the publication of a defamatory statement.  The point about editorial control may be more difficult to establish for a user-collaborative news platform given the shared authorship and editor roles between employed journalists and the user community, which may mean that the defence under section 5 of the DA 2013 is easier to make out.

In addition, the E-Commerce Regulations 2002 (implementing the Electronic Commerce Directive 2000) provide defences to a range of actions, including defamation proceedings, against “information society services” (ISS), which in essence are internet intermediaries. The availability of such defences in an action against a user-collaborative user platform will ultimately come down to whether it constitutes an ISS.  By way of example, UK courts have found that search engine operators and blogs could benefit from the protections under the Regulations, whereas the ECJ has indicated that the online version of a newspaper is not an ISS because it had knowledge about the information it posted and exercised control over that information (Sotiris Papasavvas v O Fileleftheros Dimosia Etairia Ltd and others (Case C-291/13)).  As discussed above, where an entity both produces online content and acts as a platform for online user contributions, there is some uncertainty as to whether the ISS defences are available.

Hyperlinking

A potential further issue relates to journalistic method: it appears likely that user-collaborative news platforms will make use of hyperlink references to sources to ensure that facts are easily verifiable.  Yet it is possible that hyperlinking to a source with defamatory content could incur liability under the DA 2013. While there is no definitive case law clarifying this point, the High Court refused to strike out such a claim in 2012 (McGrath v Dawkins [2012] EWHC B3 (QB)); however, the judge stressed the case was fact-specific, and it involved more than a simple link to the defamatory material. It therefore seems unlikely that a mischievous citation would constitute sufficient grounds for a claim, but it is nonetheless an area of some legal uncertainty.

Given that these are largely novel issues in defamation law, we will have to wait for legal certainty with regards to user-collaborative news platforms until these matters come before the courts.

Please note that Wikitribune is not affiliated with Wikipedia. Rather, the project is a separate venture by founder Jimmy Wales.