Comment is free — but it can be costly

As The Telegraph announces the suspension of online reader comments, a media lawyer explains the law below the line

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So farewell, then, reader comments. On The Telegraph online, at least. The paper has decided to suspend its facility for online comments, indefinitely. As a spokesman said:

“In the process of migrating its site to a new online platform, The Telegraph has suspended the comment function in some areas under transition until further notice.”

He added that the paper “is also undertaking research to understand the best way to support reader engagement, but in the meantime they can continue to comment on and share articles through Telegraph Facebook pages, or via Twitter, in the usual way.”

The Telegraph isn’t the first heavyweight publisher to step away from online comments. Bloomberg did likewise in January, while Reddit’s spin-off news site Upvoted also bans comments.

Are other websites likely to follow suit? Perhaps. And could it be that the law has something to do with their thinking? It’s possible. Contrary to the views held by many of the Facebook generation, the internet is not ungovernable Wild West, a free for all in which prevailing laws don’t apply. You can be personally liable for a comment you post — and so can the website that publishes it.

Liable for what, exactly? Well, if you post a defamatory comment — one that will make ordinary, right-thinking people think the worse of the person or company you’ve written about — you could be sued for libel. So could the publisher. This, the business of what appears ‘below the line’ (as it’s known in the trade), is fraught with risk.

There are obvious allegations that will make publishers’ lawyers wield their red pens — calling someone a murderer, paedophile or thief — but others, too, that are fertile ground for claimant libel lawyers. For example, to call someone a liar is dangerous — how can their state of mind be proved?

There are defences — all the usual ones available under the Defamation Act 2013. The comment might be true, or it might be couched in terms that make it “honest opinion”. It might not even cross the new “serious harm” threshold. But one defence beefed up by the Act isn’t necessarily going to help — that of innocent dissemination.

Yes, the Act says that someone who acts as a “subordinate distributor” of defamatory material isn’t liable for it — but conventional wisdom says that the more popular a website is, the more it will be expected to exercise editorial control and so won’t fall within the defence.

Hence, then, newspaper groups like The Telegraph will be mindful of the downsides of allowing readers to have their say. Unless they’ve got the resources to retain a team of moderators, who in turn can refer tricky comments to a lawyer, they expose themselves to the risk of a libel action.

Turning comments off might, then, save a paper money, whether in paying out legal claims or paying for moderators.

Meanwhile, for those who prefer to let their readers comment, it pays to keep a close eye on what they’re saying. No one likes censorship, least of all those who work in the media, but no one wants to be sued, either.

Alex Wade is a media lawyer, author and freelance journalist.


11 Comments

Anonymous

Is Mr Wade really a lawyer? He doesn’t appear on the “Find a Solicitor” facility, or the CILEx directory.

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Anonymous

Perhaps, then, describing himself as one is a little misleading.

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josh morris

Wading in as a journalist working in legal press, there is defence against accusations of defamation in section 1 of the Defamation Act 1996, and regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002/2013 if newspaper staff don’t monitor or check comments, if they don’t invite comment in a way likely to produce a defamatory response.

Also, see Karim v newsquest Media Group ltd (Oct 27, 2009)

(1)(0)
Anonymous

Or s5 of the Defamation Act 2013, which provides a defence to a website operator so long as they haven’t a.) made the comment; and b.) haven’t been notified (or if they have, they have responded appropriately).

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Anonymous

Too many ‘haven’ts’ in that post. I shouldn’t be posting before coffee.

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Laird Lyle of the Isles

I never dealt with the media. A media lawyer is an oxymoron. My secretaries were specifically ordered not to deal with the press. In one case the phones wouldnae stop ringing and the paparazzi besieged my office. I moved to another office ’till they fucked off.

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Anonymous

A cynic might point out that the Telegraph comments section was populated by those bemoaning the falling standards of the paper, and those who could be categorised as swivel-eyed loons that even UKIP would have rejected!

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Anonymous

‘Tomorrow’s chip papers’ took on a longer life – a living, breathing dimension – thanks to the online versions operating live comment facilities: the latter often being more interesting than, even acting to correct, the copy itself.

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