Publishers, producers and broadcasters are familiar with the basic principle that they are liable for the words that they publish, produce and broadcast. For example, it is settled law in the UK that a publisher is generally liable for anything it publishes on its pages, and it cannot rely on the fact that someone else said it (or said it first) to escape liability (save, for instance, where the publisher can benefit from the website operators’ defence).
Those defamed by others therefore have relative freedom to pick and choose their defendants, whether that be the publisher or a contributor to the publication.
Two recent cases discussed below have provided further guidance on the liability of publishers and broadcasters for statements made by third parties.
Case report: Economou v de Freitas (21 November 2018)
This principle that a defamed person can choose whomever they sue allowed the claimant in Economou v de Freitas to go after the source of the story rather than the publishers distributing it.
The facts of the Economou case were described as “striking and tragic”. Indeed they were. Mr Alexander Economou was accused by Ms Eleanor de Freitas of raping her and arrested but never charged. Mr Economou, who considered that Ms de Freitas had lied to the police, started a private criminal prosecution against Ms de Freitas for falsely accusing him with intent to pervert the course of justice. The Crown Prosecution Service (CPS) took over the prosecution and four days before the trial Ms de Freitas, who had long-standing mental health problems, committed suicide. Ms de Freitas’s father, Mr David de Freitas, took up her cause and was particularly scathing of the CPS’s decision to take on the case. Mr Economou sued Mr de Freitas for defamation in respect of various interviews and comments he had given to media organisations. Mr de Freitas successfully argued that he could rely on the public interest defence provided by s.4 of the Defamation Act 2013.
The Court of Appeal handed down its judgment in December 2018. It agreed with the first instance judge that when considering the s.4 defence the court will consider all of the circumstances, including the particular role of the defendant (ie as a contributor). Mr Economou’s legal team argued that the first instance judgment effectively created “contributor immunity” by permitting the contributor to defame someone and rely on the media organisation to apply some journalistic skill and balance to the finished article. The court stressed that it will look at all of the circumstances of the case “including, importantly, the particular role of the defendant in question”.
The saying goes that hard cases create bad law. However, it seems clear that this case does not create any form of contributor immunity. It does though allow slightly more leeway to those who are discussing matters that they reasonably believe to be in the public interest but who are not professional journalists. The media organisations that publish those contributions though remain primarily liable for any defamatory imputations contained in articles or programmes, though, and should be ensuring that they practise responsible journalism in publishing articles, especially where the proving the truth of the allegations is going to be difficult.
Case report: Magyar Jeti Zrt v Hungary (4 December 2018)
An important judgment handed down by the European Court of Human Rights in December addressed the liability for hyperlinking to third party content. We considered the case in detail for the influential Inforrm media blog last month – see here. However, in summary, the court found that Hungarian laws that provided for automatic liability for the contents of web pages hyperlinked to on a publisher’s website infringed the publisher’s rights to free expression under Article 10 ECHR.
Aside from being an interesting, albeit disturbing, case, the status of liability for hyperlinking is vitally important. There have been several cases before the CJEU addressing liability for hyperlinking to content that infringes copyright, eg GS Media BV v Sanoma Media Netherlands BV and Others (C-160/15). However, the Magyar case is the first case in which the European Court of Human Rights (which is the court that hears complaints about breaches of the European Convention on Human Rights, and is distinct from the European Union and the CJEU) has had a chance to look at the practice.
The European Court of Human Rights paraphrased Tim Berners-Lee (the man credited with inventing the world wide web) and found that “hyperlinks are critical not merely to the digital revolution but to our continued prosperity – and even our liberty. Like democracy itself, they need defending”.
The result seems to mean that the mere provision of a hyperlink to a post containing defamatory material (without repeating or endorsing the defamatory material) is unlikely to form the basis for a claim for defamation. This seems sensible, and is probably reconcilable with findings that retweets can constitute a publication for the purposes of bringing defamation proceedings (see last month’s newsletter). The court said that where a journalist “repeats defamatory or otherwise unlawful content to which the hyperlink leads [which would usually be the case in a retweet scenario], the use of the hyperlink is equated to traditional forms of publication”, meaning that the hyperlink carve-out would not apply.
Take away lessons
These cases illustrate that publishers are not solely potentially liable for reporting statements made by third parties. The circumstances in which those statements have been reported, steps taken by the publisher to address any potential complainant’s concerns, as well as other factors, are relevant.
Journalists reporting on matters of public interest are required to meet generally accepted standards of responsible journalism, and should ensure that they understand how a court would view their reports. Publishers in particular should also be wary of how changing technology may create liability. For instance, a hyperlink used on its own is different from one used with embedded or ripped or reproduced defamatory or otherwise unlawful content, and publishers should be live to the potential issues those changes may create.
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