By Nigel Miller, Commerce and Technology Partner, Fox Williams LLP
User generated content
One of the key elements of web 2.0 websites (such as blogs, video and image hosting and social networking websites) is that all or some of the content is created by the users, and not the information society service provider (“ISSP”) (hence, user generated content, or “UGC”). This presents the risk that an ISSP could be liable for content which it publishes but did not create. Liability could be for defamation, infringement of intellectual property or criminal liability for illegal content.
For ISSPs whose websites carry UGC, the Electronic Commerce (EC Directive) Regulations 2002 (S.I 2002 No 2013) (“the Regulations”) provide considerable comfort. The Regulations are derived from EC Directive 2000/31/EC ("the E-Commerce Directive"). Regulations 17, 18 and 19 exclude liability in certain circumstances where the ISSP acts as a “mere conduit” or where the ISSP is providing caching or hosting services.
Regulation 19 offers ISSPs a defence that they will not be liable for content which is hosted by them but for which they were not responsible. The Regulation provides that the ISSP (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of the storage of information provided by a recipient of the service where the ISSP:-
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the ISSP that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.
While the Regulations have been in force since 2002, it is only in more recent times with the emergence of web 2.0 models that it has been put to the test. Typically, in such cases there are three parties: the injured party, the ISSP and the user who caused the injury.
One such recent case is Kaschke v. Gray and Hilton Neutral Citation Number:  EWHC 690 (QB). The claim relates to an allegedly defamatory blog post on the LabourHome.org website about Ms Johanna Kaschke.
Ms Kaschke is a political activist. She is German but has lived in England since 1977. She was for some time a member of the Labour party, which she left to join the Respect party. The blog posting linked her to the Baader-Meinhof terrorist gang under the heading '"Baader-Meinhof" losing candidate joins diss-Respect'.
The Labourhome.org website was operated by Mr Hilton, who is a Labour Party political activist who stood as the Labour candidate at the 2010 general election.
The item was posted by a user named “Grayee”, who is alleged to be Mr Gray, who was elected as a Labour member of Newham Borough Council in the 2010 local elections.
Ms Kaschke claimed for defamation against Mr Hilton (the ISSP) and Mr Gray (the user who allegedly caused the injury).
As ISSP, Mr Hilton raised separate defences under section 1 of the Defamation Act 1996 and Regulation 19 of the Regulations. He made an application for summary judgment under Part 24 asserting that Ms. Kaschke had no realistic prospect of defeating either of those two defences. Master Rose found against him on both points. He appealed on the Regulation 19 point.
Information society service
The defence under Regulation 19 only applies where an information society service (“ISS”) is provided. The first question, therefore, is whether Mr Hilton provided an “information society service” within the definition set out in Regulation 2(1). This refers to recital 17 of the E-Commerce Directive which says that an ISS covers "any service normally provided for remuneration at a distance by means of electronic equipment for the processing (including digital compression) and storage of data and at the individual request of a recipient of a service".
Following Bunt v Tilley [Neutral Citation Number:  EWHC 407 (QB)], the court referred to Matthew Collins' work The Law of Defamation and the Internet (2nd edn, 2005) which observes at para. 17.03 that: “Commercial Internet intermediaries, such as ISSPs, bulletin board operators, and web hosting services will usually satisfy this definition”.
Although there was no analysis on how “for remuneration” should be applied in the case of a free website, the court decided that it was not seriously arguable that Mr Hilton was not providing an ISS within the definition set out in Regulation 2.
Consisted of the storage of information
The next question is whether the ISS provided by Mr Hilton consisted of “the storage of information provided by a recipient of the service”.
The key issue here is whether the service consisted “only” of the storage of information. It is for Mr Hilton to show that, as the ISSP, he did no more than store the information in question.
In the event, Mr Hilton made a number of admissions about the circumstances in which he would sometimes exercise control over the UGC. For example, he could promote certain posts, to place them in a more prominent position on the website. He sometimes checked a posting for spelling and grammar and made corrections. On occasions, he would delete UGC (for example, in response to a complaint or where he thought that removal was necessary).
The judge found that, when considering whether an ISSP is entitled to the immunity conferred by Regulation 19, the question to be asked is whether the ISS consists only of and is limited to storage of the information. If the answer to that question is that it does, Regulation 19 immunity is potentially available. Conversely, if the ISSP exercises some editorial control, his involvement goes beyond the mere storage of information so that Regulation 19 immunity would not be available.
Entire website or just the offending page
Ms Kaschke submitted that, where a website comprises more than one web page, the question whether the ISS “consists of the storage of information” must be answered by reference to the whole of the website and not just the page containing the information comprising the defamatory words. For the ISSP, it was submitted that the ISS is a reference to the individual posting on which the defamatory words appeared.
If the ISS was the website as a whole it would not fall within the definition of “consisting (only) of the storage of information”. On the other hand, if the ISS was the individual posting, then if the posting had not been moderated the service would fall within the definition of “consisting (only) of the storage of information”.
The judge considered the decision of the High Court of Ireland in Mulvaney v Betfair  EIHC which concerned a chat room on a betting site. In that case it was found that it is not necessarily a bar to entitlement to the Regulation 19 defence that the ISSP is also engaged in an activity on the same website which is either not an ISS or, if it is, which does not consist (only) of the storage of information.
The judge also considered the decision of Eady J in the unreported case of Imran Karim v Newsquest Media Group Limited dated 27 October 2009 case number HQ09XOO3357 which it found was authority for the proposition that an ISSP is not precluded from invoking the Regulation 19 defence by the fact that he also provides some other service which goes further than the mere storage of information.
The judge decided that the question whether Regulation 19 immunity is potentially available falls to be considered by reference - not to the website as a whole or even the general storage of blog posts made available on the website - it falls to be considered by reference to the specific blog item posted by Mr Gray.
Therefore, having regard to the evidence, there was an issue to be investigated at trial. It was whether or not Mr Hilton did in any way edit, amend or alter any of the content or appearance of Mr Gray's blog. It followed that, because of the evidence of his occasional interventions in respect of other blogs, there was a realistic prospect that Mr Hilton's Regulation 19 defence may fail if he had intervened with this blog. On this basis, the claim could not be struck out and the appeal failed.
Although the case is not a full trial of the issues, the judgment does provide some helpful insight into judicial thinking on the extent of the Regulation 19 defence. While it remains the case, somewhat ironically, that ISSPs who turn a blind eye and do not moderate UGC have more protection than those who diligently moderate the UGC they host, ISSPs can take comfort from the fact that the occasional intervention into items of UGC as and when needed will not cause the loss of the defence in respect of other items of UGC where there has been no intervention.
Nigel Miller is a commerce & technology partner at Fox Williams LLP. He can be contacted at firstname.lastname@example.org
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