Comment is free — but it can be costly

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By Alex Wade on

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


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.