 Hi. Would you have heard the introduction so you know all about me? You should see some slides, what a slide does there. A rudimentary copy of a slide, essentially PDS of the slide and some notes that I have made for the talk you want to see them are on that github pages site at urlfasysdabi.github.io. I'm always a bit sad about github pages because the .io domain was of the British Indian Ocean Territory. One of the earliest things I did as a pupil was being involved in litigation, by people who used to live there but were kicked out by the British government and have been trying various ways to get back. I think it's rather sad that this popular top level domain represents a nation that doesn't exist because the British government wanted to tease Americans who wanted to bexer, ac nid o ddechrau i nôl o'r brosbeth. Ond yn ddod, rydw i'n ddim yn ddau'r ddau, sy'n ddau sy'n gofynion i ddau. O'r ddweud ymlaen i'r ddau, yw'n iawn i'n ddwyliadau'r ddaf. Rydym wedi gael y ddweud, ydych chi'n ddweud i'r ddaf sy'n ddweud i'r ddweud i'r ddweud i'r ddweud. Dwi'n ddweud i'r ddweud i'r ddweud i'r ddweud, y cyfan yw'r ddefnydd i gyfnwyr. Mae'r ddych chi bィlch yn gw'n gwneud o'r cyfnod o'r cyflwylliant, felly rydyn ni chi'n gwybodaeth o'r sinusio. Rhyw gwybod nesbyddu ry'n gwybod yw'r dweud. Mae'r ddechrau hynny'n gwneud y gall agos blwyddyn a pwg fod yn ei ddweud. Felly chi'n rhaid i chi fydd i'w gweithio mewn gwahanur? Rydyn ni'n cael y gallu gwahanur lleodraethau sydd gydag. Wrth eich bod yn amlion y cwrs, an wannud drw'r oes y flwyddyn nhw erwyddo. Rwyfwn i'n teimlo i gyd yn c lyw i gydenthafion ar gynghorydd yng Nghymru. Ond rydych yn gwleidio gwneud, dydych yn gwleidio gwneud, ond yna fe rhaid wedi ychydig i gwneud, d summonen i gyrdd i gyrdd, ond ond yn gwneud sy'n gweld o'r unrhyw i gwneud. Ond dosyn ni'n gweld iddyn nhw, fel angen i'r angen ymddangos bwysig, maen nhw'n gwneud chwarae mae, arig bydd dyma o'r varau o bob tumb, wrth gwrs, y cyfryfwyr fel sydd y cyfrannol yn gweithio fel gymryd. Maen nhw'n mynd i'r bod ni yn ysgold ac mae'r manfa hynny yn maen nhw'n mynd i ffordd a fydd eich hynny. Mae hyn yn dyma hwn yn gwneud i ysgrifetau ei hyr gaenalu, rydyn ni'n gweithio ag y llwythiau, oherwydd, mae'n coprwyddo, yr ysgrifetau bwynt arweithio llyfr�afwyr, a cyfwyddiadau a'r cyfwyddiadau hynny yn gwneud ei ffordd bydden nhw. Felly mae'r gwisio fath o fath yn ymddangosiaf. Felly mwy o wybodau, fod yn byw'ch godi ddechrau, os yn cwrd yn dod drwy gwyfnol, felly os yw'r llanau yn ymd— pan wnaet i gweld eu gwelwch a chonfu cyfwyddiadau. Rwy swydd wedi ben gyd, byddwch i gyd, fod wedi diemethau i'r d cryflyry, ac yna llanau lle'r gwrth am mwy o bryd yn dangosiaf. Rwy'n ei ddweud o feddydd ymgleddiaeth ac rwy'n ddweudio — drwy'r ddechrau, rwy'n sgwrdd fan hynny'n ei ddweud yn dweud, iawn y ffordd wedi ddweud Cadwg. Rwy'n fewn llyn yn ymderen. Ond y ffordd wedi bod yn ymddyr â'r ddweud o'r ddweud a'r ddweud i'w ddweud ymaad rydym yn ysgwrdd hynny, a rwy'n efallai unrhyw pryd o'u basketr o'r ddweud, gan y ffordd yn ei ddweud yn enhygoedd. .. ac this is much more important. Don't have to municipality end of the story. Where defamation works is a bit like a game.. .. in fact it feels very like a game if you have to work through defamation kidsorthation. What happens is that somebody claims defamation, and this, you know, .. ..and not write defamation, .. And then someone defends, and they play various cards that they have in their hands to defend themselves.. ..and then maybe there is a response that counters them. Ond yn ôl, nad oedd ychydig yn ffawr o'r ddechrau, rydyn ni'n ei ffordd o'r ffaith a phoblau'r ddechrau. O'r ddweud o gydag o'r ddweud y byddai. So, o ddod y byddai, gallwch yn ddweud o'r ddweud o'r stori gyda'r ddechrau. A'r ddweud o'r stori'r ddweud o'r stori? Rydyn ni'n ddweud o'r stori? Ond rydyn ni'n ddweud o'r stori a'r ddweud o'r ddweud? Ac rydyn ni'n ddweud o'r stori? See what would happen if, and imagine that just by saying, something is the fabric that's the end of the story. It's a problem I have when I give talks about data protection quite a lot, because if I say something is personal data people immediately mean that something is personal data means you can't present it, because that's not true. Similarly you can publish the fabric material all the time. It's there, raison d'etre. Many cases, but that's not a problem most of the time. Ond, mae'n fawr yn holl y gallwn ein cyffredin gyda'r cyffredin ein gwasanaeth gwneud a byt astud yw'r gwneud eich casen yw i gyfar y breddwyr? Ond pan os ydych yn ddiddorol yr arweinydd y bydd y bydd y bydd eu gwasanaeth yw bydd y bydd y bydd y bydd y bydd. Ond mae'n gweld cerdd, o'r bydd y bydd y bydd y bydd y pwylliant ac rhaid fod i yn pwylliant, ac rhaid fod phi'n bwysig yn sefydig ac yn y bydd hwn. I can answer general questions. Now, why am I focusing on defamation? Defamation is about defaming somebody, producing their thing, publishing statements that harm their reputation. Defamation has a number of features that are online for most of the forms of damage. The first thing that's particularly dangerous about it is that someone claiming defamation doesn't have to prove that what you have said is false. By contrary, you can defend yourself by proving that what you said was true. Obviously, that puts the ball in your court. And if you're publishing other people's material, you won't know whether it's true or not. So it means that it's possible to defend someone innocent without deliberately trying to do so, and that makes it a trap. Another difficulty of defamation is that it applies to every repetition of a defamatory statement. So if I were to retweet your defamatory tweet, I'd commit defamation as well. And that's a problem because some things get retweeted quite a lot. There is a slight corollary to that, which is that there's a rule of law, which is not allowed for your suing people for defamation. You're not allowed to recover more damages total for all the times you sue than your total damage. So that if you sue 1,000 people, you shouldn't be getting 1,000 times as much damage. In fact, you should be getting 1,000 as much from each person. It hasn't always worked out like that, but that's the principle. Another bad thing about defamation, a dangerous thing, is that it can only be tried in the high court unless both the parties to the claim agree. Parties who are probably at each other's throat and hate each other already are unlikely to agree to that sort of thing, and generally they don't. I couldn't think of one county called defamation judgment in the last 10 years, maybe there's more, but it's very rare. Why is that a problem? Well, the high court attracts more expensive barristers and more expensive lawyers to the cost of the high end. And the high court is not used to dealing with small levels of damage. Occasionally you get caught pet in the high court, where the total damages are a few thousand pounds to everyone's embarrassment. But there's no small claims track. There's no sense of let's do things in a cheap way. And that means legal costs and costs generally tend to be very high. If you're pulled into a defamation claim and you fight it properly with lawyers, you'll find yourself having to pay lots of money out. And that's very dangerous because your opponent might not do that. I defended someone a while ago against an elderly individual whose hobby is suing people. There are numerous, very many cases involving him in the high court of appeal. He has an extremely common name. If you search case track which records cases in the court of appeal of the high court, you'll find an awful lot of hits, almost the majority of hits of this rather common name are him. Most of them are telling him essentially to get lost. But he has enough successes that he's able to keep going. And he's fine because if he loses, what are you going to do? So if you're caught when he says this out in the chapter we've got name, it's something for him to do. He enjoys it because it's hell for the people who are at the other end of the earth and it's thick. The lowest dangerous feature is the feature that no longer exists, which is it used to be the case that you had to have trial by jury. A trial by jury is a big deal. And it's a lot more expensive. Doesn't happen either. It has been abolished as of the 1st of January last year. So that's a good thing. Sorry, does that mean you had no longer had a trial by jury or just that you were not necessarily? You almost certainly won't. It's the same, the rule for almost all civil claims in England is that you could only have a trial by jury in very special circumstances. And those very special circumstances never happen. To a 1st approximation, there is no trial by jury. There might be an inconceivable situation in which you would have. Maybe if there was a case in which half the judges of England and Wales were suing the other half or something, then you might want to have a jury decide. This is not the only thing that you can unsuffer. There are some. It's useful to think about what other kinds of claim that people make about things that are controversial to your website. One of them is a cause of action and is malicious falsehood. Malicious falsehood is slightly less dangerous because a claimant has to prove that you've published something that is false. So they've got to make the efforts and they've got to prove that you have what's called malice, this technical term in defamation of law, which means that you knew that what you were saying wasn't true, or at least you knew that you had no basis for saying it. Most falsehood happens. Something that's going to be on the up, because defamation is on the down, as you will see, is data protection. You're only starting to see people making data protection claims in parallel with defamation claims and that's going to increase. As you probably know, there has been a case in which somebody managed to persuade people to remove links about them. That's about the most most reported case that I've seen in the last five years. That's not for today. But that principle that I can sue you for misusing my personal information, true or not, is something that's going to affect us a bit more. Discussing that adept is an hour or two. If you'd like to organise a talk in which I can talk about that, that'd be great. Best to wait until the new European Union regulation has been finalised so we know what the law is going to be rather than what the law was. The good thing about data protection is that it applies only to people, to human people, that is, to natural persons. So companies can't sue you for misusing their personal data anywhere it's at its own. So that's great, because companies also sue you for defamation and they can sue for quite a lot of sums of money, as Mac Donalds did famously. Then there are privacy rights and intellectual property rights, such as the trademark, which Mike mentioned. Or to carry on saying, that's our trademark, I'll use it, we say, because that was a bogus claim. The defamation law is quite small and compact. The standard book on it is just one book. It's much more, it's a word I thought of, it's tricksy, it's got lots of ins and outs and twisty bits. The data protection act, that's an idea that people have had to read it, looked extremely simple and transparent. So I will try my best to keep it simple, but beware that behind what I'm saying is a whole load of subtlety. One of the reasons there's a whole load of subtlety is because defamation has a long history. People have been deciding important things about defamation since at least Elizabethan times, it was suing for it before, but there's a body of case law going back centuries. In that time defamation laws have come up with lots of cute, weird little bits of terminology with principles which they all know and which nobody else knows. A second thing, which makes it weird and hard to understand, is trial by jury. With Buck in the Middle Ages, jury's come along, and jury's and judges hammer out effectively a deal whereby jury's decide questions of fact and judges decide questions of law. If judges know about the law, jury's don't and jury's get to decide things about facts. In the context of defamation, what that means is is it a defamatory state, is it a factual state decision in which a jury can make? So we can't have any decisions by judges on that. Of course I'm worried for some people because jury's are, you know, they've got some great weird solutions. So judges start saying, oh we can't decide whether something is defamatory, but we can decide whether it could be defamatory if it's capable of being defamatory. So there's a whole load of case law that revolves around the fact that judges want to get involved but they can't answer questions of facts so the answer is higher order questions. If you read a textbook on this, there's a whole load of preliminary skirmishes which are usually fought before a case would be put to the jury about whether something should be put to the jury and what questions should be put to them. And that makes all the case law very weird because it's not answering the question you want to know often. Is it a defamatory? Is it okay for me to do this? And the answer is it could be okay and the real answer is some black box jury. So that, believe me, that makes it a much harder area of law to get your head around the most other areas of law. There's also the Human Rights Act. The Human Rights Act is great. It comes along with Article 10. Article 10 is a right to free speech. Judges realise that they cannot carry on being quite as mean to newspapers and quite as harsh in defamation as they have been. I don't know if they think of it like that, but that's the case. So what you see over the last 10 or 15 years is a softening of English defamation law. Principles being invented off the back of the Human Rights Act to make life easier for people like us who are publishing things and good stuff. And then along comes defamation act 2013. This is a major reform of defamation law. It applies for the first of January 2014. All that means is we quite know whether it works or not because people who are suing at the moment, judges who are getting at the moment, are from people who were defaming before that. So we haven't had many cases actually about defamation act. So we don't really know how it's going to affect things. And it was drafted by Parliament, which means it's absolutely dreadful. It's as if someone wrote it with very little understanding on the defamation law. It's a patch on the law which does not fit well. To give you an example of what I mean, the courts developed a notion of publication in the public interest, a defence for a published sound, publishing in the public interest, which was called Reynolds privilege after an Australian or a New Zealand case. That's great and this defence was invented. Obviously it's effectively a growth out of existing law with Human Rights. It's kind of been slowly grown from a base of what the law was. What defamation act of 2013 says is that's repealed, that privilege is repealed. We've replaced it with something. We don't know what has been snipped away from the existing law, where the patch has been put and where the whole has been hanged. So we don't know what's gone. We don't know what they've completely unclear what it means. So it's quite important defences that might or might not exist. Exist is before the act, but probably still exists, but we don't know if there's no one there. So it is worse than normal. Normally lawists said they don't know, but this is worse than normal. Okay, so now we get to the question of a bit of terminology. Defamation is a class of clang with two members, libel and slander. So it's an umbrella term. Slander, roughly speaking, means anything, defamation is said, and libel is anything which is printed historically, and nowadays almost anything else is living anything on the web. Anything that we are interested in today will be libel. There used to be a big difference, yes? Sorry, when you say it's spoken, does that happen to be spoken in real life, and have you spoken in a YouTube video? A YouTube video will be libel for various reasons. So it's spoken in real life. Pretty much. Almost nothing else is slander. There are subtleties beyond subtleties here. There are centuries of case law with difference. The difference is probably not relevant anymore for reasons that I've explained in an appendix to my talk notes. So let's not care about everything we did with this live argument. Just some terminology that you might see. Taut is the general class of wrongs in English law. The adjective is tortuous, which is a great word. I don't think you're saying tortuous. And the person who commits a tortuous is a talk-feasor. Because you see this as an act of parliament with the married women and talk-feasors act to deal with weird women and talk-feasors. Something that gets argued about causing the forums is can a defamation statement be true? Is it right to say that something is defamationary if it's true? Turns out that different people have different approaches to this. Some people say, if it was true, you could defend it. So perhaps we will say we will use defamation only to mean false things. That's a defamatory. And other people use a term defamatory to mean anything which defames someone whether it's true or not. I'm going to use the word defamatory to mean statements, but to true or false in the words. Things that defame you whether they're true or false. Just so we know, so we don't have a life when it's bad. The law of England, if we talk about the law of England in Wales, it's got something in common with, quite a lot in common with defamation law in Australia and New Zealand. Not so much in Canada, very little with New York. Almost nothing with Scotland in many respects. It's got some very different approaches and forget anywhere outside the common law world. It's very, very much a local thing. Someone asked me this, well shouldn't we care because we've been with internet and internet is international. There are two reasons why I think English law is more important. One of them is it's historically the worst. It's the one that most people claimed in and therefore sets the standard for what not to avoid. Maybe that's not so true anymore. And secondly, because you are here and it is much more likely for you to be sued here for things that happened here. Someone's suing you in France. But defamation on the website is getting much harder for them to do it. It's not impossible. That's the whole other question. If someone does bring a claim, they have to, these are words that they might use by accident without being explained by someone. I thought I'd better explain them now. But they must do. It starts off claiming against you by writing you a letter before action. If they're sensible then they've written you before that. They might have notified you about some defamation. But if they do go to court, they're supposed to do what's called the pre-action protocol. It's supposed to give you some warning that they're going to go to court. There are some rules on where to go about the pre-action protocol, but the letter basically has to say various things, including telling you what they're claiming about and that they'll go to court or else. You'd rather take it down once. If they do go to court, the issue is what's called a claim form. You can find out a claim form. It used to be called a RIT. Journalists still call it a RIT. They say it's an incident that's issued a RIT, even though they haven't been RIT since 1999. Journalists take a while to catch up with these things. And a claim form is issued, a technical term. It's what the court does. It prints it out and sends it, serves it on somebody. The person who does this, who starts things off, is called the claimant. At least we've got the plaintiff. And the person responding, the person who's being sued is called the claimant. Right. So now we know all those words. Let's think what a... If I wanted to sue you for defamation, what would I have to prove? What noise would we call the elements of defamation? What pieces do I need? Well, there's got to be a statement that's about me identifiable. And it has to have a meaning, and that meaning has to be defamatory of me. Now that subtlety is because a statement could mean lots of things, and there might be sorts of background information which will come to you, which tells you that it's defamatory. The statement has to be published to a third party. Publish, I think I've got to explain a bit, means essentially communicated to a third party. You can't defame someone by writing to them an email saying something defamatory. In Scotland, you probably can. But in England and Wales, you have to have to be someone else involved. It used to be the case that you could deliberately cause this to happen. There's a famous case, Brunswick and Harmer, in which the deposed Duke of Brunswick sent his servant to a library archive to dig out to defamatory statements about him. And soon on the basis, he was published to his servant. That was what he'd done. That's unlikely to be the law anymore. It has to be some third party, and that third party probably has to not be connected to you. This is relevant to us because you will have, hopefully we'll have, website logs. As soon as somebody starts complaining about defamation, you want to check who has actually accessed the relevant information. If you have a big site with lots of pages and not many people accessing each page, you might find that no one has accessed it. Or the only people who have accessed the page are the person complaining and the person who wrote the information. There's a case in the High Court in which there have been five different IP addresses to access. One of them was the defendant, one of them was the claimant, one of them was the claimant's friend, and one of the defendant says to her, that's not a lot of things. Outside the clique of people involved in the claim, there were probably no, there was probably no, there might have been a lot of people, but it was unclear that any, there had been any significant publication. New, since the 1st of January last year, with the defamation act, is a requirement that the statement caused or is likely to cause serious harm to the claimant. It used to be the case that the rival was sewerable, sewerable, even if you had suffered no harm at all, because serious statements about your reputation would generally deserve some damages. See, you'd have to prove it, you could come and see for yourself without proving that anybody had even believed the statement about, about. Now that's not true. I'll talk about that more in a second. Francis, on that slide. So you said about identifying individuals. Yes. If it's just a small group of people and you know that there's kids, a group of people, or one person within a small group. I'll come to that later. But remind me if we don't get to it. So, next question. What is a defamatory? What does it mean for a defamatory? Usually you don't understand this, so you understand whether something you're looking at is a defamatory. There are lots of attempts by judges to define what is defamatory. You know when you see it. In fact, there's a case called Thornton in which the judge lists nine different attempts to define it, all of which are different. One classic one is words that tend to lower the plaintiff in the estimation of right thinking members of society generally. That's a sort of touchstone. But it's too narrow because the court's accepted that it's defamatory to say if somebody, something that isn't critical of them. It can be defamatory to say if somebody, something that will make people treat them differently or think differently of them. Perhaps not making them not want to associate with them. The classic case of this is the case of Yusofov, which was about somebody who'd been defamed by being said that she'd been raped. Now being raped is not something that is your fault but in the 1930s it might well have meant that people would not have associated with them and that would count as a defamation. Nowadays saying that someone is HIV positive might well be a defamation. It would be a defamation because people would definitely treat someone differently. You would not like people to think that you were HIV positive if you were not. That defamation is wider than simply saying something about somebody that is morally critical of them. That's a difficult question. I mean, generally it's a difficult party, no. So I might say you're a member of the conservative party and my cheap friends might find that very insulting but would right thinking members of society think that, probably not. So they probably wouldn't. I mean, it's a tricky thing. The legality isn't the end of the story saying that someone has done something that is a bit off morally but still legal can be defamatory. It's a recent case about that. But it's not it's not enough that some people would think that's the case. It's a case called Bernard Dean. Bernard Dean is about a club where there was a an illegal one arm bandit stop machine. Some member of the club reported this to the police to authorities and it was removed by another member of the club because a little polymer criticising Mr Byrne for having informed on the police. And he sued in fact he sued the proprietors of the club who hadn't taken it down and of course when they write you from a person would criticise you for going to the police. Being informed then can't be defamatory. It might be defamatory amongst the opinion of criminals and riffraff that's how judges think but not about right. So I suspect being a member of the BNP would not be defamatory. It's hard to say and in the old days it would have been up to a jury to round up people. Nowadays a judge will decide and we don't know how judges are going to decide that. Can you imagine a situation where 40 years old when the bill changed for a bit of time when the day was legal for a friend to see it to be published to someone's day is legal. Yes that's right. However over time the sensibility has changed there's a curious movement where your defence will change from half the white thing Yes indeed and the attitude of the society do develop. So it definitely serves the thing that is different if not defamatory because the modern thing is defamatory. Indeed. It definitely was defamatory to say of someone that they were homosexual at one time there were cases on it but making a defence on a basis that are actually more current to think of. The question is where does the cross-over line the claimant has to prove it's defamatory. So if there's any doubt to be resolved in favour of defending it. It used to be the case that something could be defamatory if no one who heard it believed it. Which is slightly odd that the test was what was likely to be the result of the statement not what was the actual result. Now we have this rule that has to have been serious harm which if no one believed it it's hard to think that it would be serious harm but there were cases in which something which you could prove that no one who heard it believed it was still actionable. So here are some examples. I can't remember the right answers but C is insane. I think that was defamatory in a case HIV had been raped always. Had heart disease I think it was not a plan to be defamatory in a just image of something which has moved from being defamatory to not defamatory having leprosy would be defamatory probably still be defamatory. X is about a journalist and C I think that has helped not to be defamatory because that's something that's a perfect norm. And C is a law I've only average affinity. That wasn't defamatory which is good otherwise you know exactly that. Now one of the problems is what meaning is not a nice simple it's not a philosophically uncomplicated notion and called to wrestle with this too and the technical term is the natural and ordinary meaning of the words whatever that means but it includes things that you can infer from the words. So a statement like Fox was reported twice as a spy suggests more than simply that he'd been reported twice as a spy. Suggested that he was a spy and he spoke about the fire on the floor. So perhaps that would be defamatory. Depends on the situation but however the cause would say well there has to be some limit. It can't be what they call a strained force to wrestle with the enemy. It's not enough to say this could mean this. This is any meaning this could have therefore I should win. And there's a case called Carrot of the County's Bank of Hintsey in which a bank said we're not going to accept any more checks from this other bank and the other bank sued on the basis that that suggests that we're insolvent or something and that was found to be too much of an influence. And one judge said there are suspicious people who would think choppin tomato sauce had a defamatory this knows what but there are such people and in order to try and work out what something means the courts have constructed that an artificial artificial person a fictitious individual the ordinary reasonable fair-minded reader who's sitting at their newspaper doing ordinary reasonable fair-minded things they might be guilty but certainly might be thinking that was a lawyer but they don't read a sensational article with forces of critical care and they go by broad impression but there are reasonable intelligence and they have an ordinary person's general knowledge so this is that fictitious person reading it and there's a lot of cases about what this person would do there's a famous case at Charleston in which newspaper ran with some photoshopped pictures of two actors two pornographic actors engaged in what newspaper is called sex act I think some kind of sexual activity but with their head removed and the faces of two famous actors placed that and the headliners called what is our Harold doing to our match the text of the article said isn't it awful that there are people who do this kind of photoshop it's a typical outrage of a newspaper who do this awful photoshopping and do these things how awful it must be for these poor actors for these pictures to be circulated even though we're putting on for a paper and the actors understand that they're sued on the basis that he carried this picture and the headline carried it out to you meaning that they'd be having sex in the film doing it in the photograph doing it and the question was well would this ordinary reasonable fair-minded reader read the headline and the picture or would they carefully read through and actually with the article and apparently ordinary reasonable fair-minded readers do they don't just stop at the headline they read through to the article because they're just a bit less ready to come to a decision a negative decision than some people so you can see how weird an artificial defamation can be there is an issue of what's called an innuendo an innuendo in the legal sense is where one thing has one meaning but if you knew some additional information it would have another meaning and that other meaning might be a defamatory meaning a famous tweet by what's the name I don't remember Yes, that's right gothers having to trouble with asking why in particular which language is trending that's innocent enough but if you know a bit more information you know that there's an innuendo or at least the jewelry found that there was so this is all big but this is really good new thing section 1 of defamation act 2013 says well you can't it's not defamatory just to say something defamatory to publish it to a third party it's got to also I have caused serious harm to the claimant will be likely to cause serious harm and this is a requirement of of the claim in other words to prove that you have a claim you can start the battle you have got to prove this well of course that's the sort of thing if you're a politician it sounds very reasonable however if you're an overly logical person or a judge you might wonder how that works and as a judge you didn't cook in this case or cook because you have a defamation act this question was well if I publish a statement at the moment of publication it cannot have caused serious harm because it doesn't have time to cause any harm it can only be likely to cause harm in the future but if that's right then section 1 would be weird because it would be useless because it would only be half of that test that would ever happen it would never be the case that defamatory statement has caused serious harm that is if defamation happens when you publish it used to be the case defamation happens at the moment you publish the statement so it must be the case that this text, this section 1 text doesn't apply at the moment of publication it has to apply at some later point in time when is that later point of time well perhaps it's when the claimant issues the claim form it's the quarter issue or perhaps it's at the time of the trial unclear so that's already a slight weirdness and what has happened in Cook and MGM was that the newspaper had apologised so that the claimant had complained the newspaper had apologised and then the claimant sued it was too late because the harm has all gone away with the apology and so defamation claims can't cause any future because there's a big apology that's clear that they've retried the statement and there's no harm up to now so that's it and that never was true before that was not something you could apologise for when it comes to that but it didn't get rid of some of the damages that you might have to pay in this case it effectively did so that's a bit weird wouldn't a judge have to be deciding on whether the apology is sufficient? there would be definitely a question about whether it was enough to get rid of the serious harm the question is at some magic point in time as a judge might be when the claim started or maybe at a trial at that point in time you say right is any harm happened? no can any harm happen in the future? no now is the case that the claimant has to prove harm and there will be obvious there will be lots of cases in which the claimant doesn't really have to produce any evidence for example a really serious thing I'm saying someone is a terrorist or a pedophile it's a blogger I think this wasn't the blogger but imagine that you wouldn't have to get you'd blog something about something you wouldn't have to get into a few large numbers of people reading your blog and survey them and see if they know how it's affecting them or going but nevertheless there will be many cases that are pressed to show harm I dealt with the case recently which I can't tell the details of but it was with some comments on the website and the comments were buried some 40 or 50 pages in as my long comment thread and the likelihood of anyone finding them was very low the likelihood of any real effect in the sort of huge scheme of things is always nil another change section is a body that trades with profit so clearly that means just a company that trades with profit that's assuming it does they have to prove that they've suffered serious financial loss that's much harder to prove because a judge will want to see some evidence in cash flow or in takings or something that shows money has been lost it's not enough to say our reputation has suffered so that should hopefully make it more difficult for companies like McDonald's for example to see people who like them that's good and good for you as well now I said that the story isn't we start a claim the end of the story comes later what the defendant can do is put up a defence now there are two kinds of defence there are general defences these are defences I'm going to talk about now but later on I'm going to talk about defences that you might want to use specifically these defences probably ones that you won't be able to use because you won't know about the information of it but maybe you will because think about being user-contribute to sites in my experience sometimes you're more involved in the content even though it's being contributed by 30 parties than others so let's have a look at these defences first one is truth complete defence to prove that something is true however a rule which is probably still there used to be a defence called justification which is to prove that it was true and that was abolished and now there's a defence of truth introduced by the Defintion Act and we don't know whether the abolition of the justification defence took with it other bits of the law or not so there was a bit of the law which I think is still true and the repetition rule and the repetition rule was that if you repeat a statement then you are you can't prove the truth of the repetition you have to prove the truth of the underlying statement so if I say for example that Mike told me that David Cameron was a pedophile then it would be true and Mike just said that to me but I can't just prove that he said it to me I have to also prove that the underlying statement that David Cameron is a pedophile so putting the word allegedly after a statement doesn't get rid of the the defamation saying because otherwise rumors will be very easy to spread and you can see that the problems are that if you were able to provide references to peer review articles and literature would that be any kind of a defence? Yes, but that's a different defence that's a peer review journal defence a specific defence for peer review scientific journals which are it's unusual to it's unusual to rely on peer review statements that the primist is a pedophile but if you find such a thing maybe that would be interesting I'm not saying it is by the way we're clear don't be a slar do we have a third party? Oh yes absolutely there's the exception to the third parties there's some suggestion that your wife or husband possibly your civil partner is not a third party the problem with the repetition rule is that you do want to report things like the police arrested someone yesterday so on to his hubby so on to his inquiries so the court has invented a way of analysing statements about that sort of thing and they call this the three levels of chase meaning chase is a case and the three levels of meaning of something like these arrested so and so yesterday the highest level is that you're really saying they're guilty if I say well someone who's being investigated for fraud I might mean I might imply and it might be clear from the context behind me that they are guilty but I might just be saying that there are reasonable grounds for suspecting them now objectively there might be reasonable grounds for suspecting even if they're innocent or I might be saying third level of meaning that there are reasonable grounds to investigate we don't know whether they're guilty we don't even know whether we should suspect them but we all have a look at it a serious allegation is very, very broad and so you as a defendant would say so a chain would say ah this is the top level chase meaning they've given this and you as a defendant would say no it's level three and if the jury would decide there isn't a jury so the judge would decide okay so have truth is great if you can prove it even if you can't prove something that's true there's an old defence called qualified privilege qualified privilege would be useful for you in one respect the idea of qualified privilege is that it I should say there is a defence called privilege which applies to certain kinds of communication which are never, ever you can always defend them they're absolutely perfect kinds of communication so for example if you come to me as your lawyer and we have a conversation that is absolutely privileged you know if someone discovers that you said something to the family tree about them to me they can't sue you qualified privilege is worse like this the person making the defamatory publication has to have some kind of duty or interest in publishing it and that the person receiving it has to have a duty or an interest to receive it good examples are things like reporting things to the police you is meant for the public have a duty to report suspected crimes the police have a duty to receive them even though what you might be saying is potentially defamatory you can defend it on qualified privilege also confidential references fair reference that you give might be defamatory of an employee there are cases where employees have successfully sued employers but defamatory references but nevertheless you can start off with a qualified privilege to defend this and your communications amongst yourselves about defamation will attract a qualified privilege which is a big deal because what will happen is someone might email you and say there's a defamatory statement on your website and you want to talk about it you want to email each other copies of the statement and the danger of you defaming the person in that conversation is almost certain to happen that's fine because you definitely have a duty to discuss it with your team this is a team that you are running a site amongst yourselves now there is a limit to that there's a case where she was defamed quite badly by a local council who reported her as being a violent individual she's a violent individual she's just complained about the force to be at their terrible treatment of her but they circulated an email around saying beware of this person she's potentially violent and some of those communications have found to be a qualified privilege because they were to people who definitely should have known people who might have visited her but it went to everyone on the mailing list including lots of contractors IT contractors who have absolutely no business knowing it and the court said well there's a cut off here these people didn't need to know so you can't use qualified privilege to defend yourself now the key thing about qualified privilege why it's got this word qualified in front of it is that it can be defeated the counter strike of the claimant by malice saying I can prove that you knew the statement wasn't true if you report a false sleet of the police about or that you knew you had no basis for making that statement that's what's called malice you've got no grounds for saying it and you know you've got no grounds for saying it then you lose the protection of qualified privilege qualified privilege only applies when there's no malice so just to be clear malice isn't that you've got malicious intent no it's special technical word used by a defamation audience it just means you know it wasn't true yes it means that you either knew or you've got no grounds for making a statement I've been mentioning Reynolds Reynolds privilege is an invention of courts which is now abolished which was applying qualified privilege to newspaper reporting a slightly big stretch but you might say well newspapers have a duty to report important matters of public interest to the public and the public have an interest in hearing important matters of public interest provided that newspapers behave responsibly they'll actually be fine so that's very good for newspapers that grew out of that is a defence known as reportage and reportage defences disinterested reporting by newspapers of a dispute so you might have two people you know publishing nasty things about each other all of it to defamatory but we need to keep you know and report these things in the newspapers and reports are very useful because it avoids the repetition rule we don't know whether reportage still exists is it a defence or not because the SNP may have torn it away may not quite too much about these you should know about them but they're not essential because you will not generally be defending your statements on who should it make them so another new defence it's called honest opinion and it works if it's a statement of opinion but the basis of that opinion has to be indicated so you can't just have an unsupported opinion an opinion has to have some reference to why that opinion is out we don't know quite how much that read maybe it could be derived from context or maybe you used to have to say I think David Cameron isn't here to file because blah blah blah blah but that's only my opinion but it's not just enough to have an honest opinion it's got to be an honest opinion that an honest person could have had on the basis of either facts key things all things that were said in a privileged statement which is a small number of list of things if you read it in a peer review journal and based your opinion on what you read in a peer review journal you're fine but if you thought something was true and it seemed to be true but it wasn't true and you based your opinion on that so you don't get any honest opinion in defence which is very odd because of the fact that all this defence you know as much as I do there it used to be a defence called fair comment or honest comment which is a bit like this in many ways so that's gone it used to be the case that fair comment could be defeated by maths so maths was that kind of character because maths is gone in this case honest opinion is now defeated if the claimant can prove that the defendant didn't actually hold the opinion which is fair enough because it wasn't their opinion or if they published someone else's opinion that the defendant knew that the other person didn't have the opinion that they republished or at least all two of them so it's a nice defence but it is a little bit problematic now the last defence I'm going to talk about and I'm not sure it is a defence it's not a very good defence I think it's called the offer of a man it's called the offer of a man an offer of a man is a defence where you say I'm sorry I'll publish a correction and an apology and I'll pay compensation it's not much better than being sued and paying damages it is better because you don't have to pay the cost of the claim but you're basically admitting defeat and giving the other stuff the one they want to pay them so it's not the greatest defence that the power is against the German invasion by inviting the Germans in but nevertheless it is a defence it's not really useful if you've done that but it's not an innocent defamation because you probably have to pay higher damages you'd pay an offer of a man so you'd pay compensation which would include some costs but it wouldn't be the case if it hadn't started yet so what could happen just so you know what the end result of the game if you fail, these defences all fail you run them all including claims that appear in your journal all of these things fail and what could happen usually two things that a claimer wants one of them is money in terms of damages but they all stand to want an injunction they want an order that something is what would it be like generally is it removed and what they can get is an order for some kind of correction or contraction courts can but almost never do order that something is removed before publication or soon after publication they might do that because it is a prior restraint it is a serious agreement of free speech courts view has generally been published and downed damages for defamation coming to pass one of them is the obvious part which is the bits of money lost that you can prove what law is called special damages special damages are obvious if I defend you and you as a result someone comes to beat you up and you then have to have medical treatments and that costs you money you can show a bill to a court or the bill is so that is clear if you lose business and you can show that you have lost business you can show a change in your water line then that might be quite clear but the biggest figure is usually what is called general damages general damages are the damages for the wrong that you have suffered and the damage to your reputation rather than the specific concrete financial loss and they used to be enormous joys were to more of these enormous sums that were massively out of proportion to that if you were a quadriplegic someone had to cause you really serious life depilitating illness for the rest of your life you would get some that would be a tent of the sort of stuff that would be given to some pop star who had something slightly rude about it I am being a bit unfair but there was a claim made by Alton John who has made more than one defamation claim be careful because someone who makes defamation claims but he made a claim relatively recently which was utterly stupid a clip but it was a claim where someone had implied that he had adopted a weird diet which involved munching food in a specific town and he sued and he got 25,000 counter damages a lot of damages if I have a serious injury I probably won't get that that's that and I'd much rather someone said something that would be rude about me than I would have asked them to run on the car and suffer a minute's pain that's my own view so a quadriple started to get involved the jury in that case was going to get 50,000 pounds and the quadriple said 25,000 but the odds were still very large so it was going to happen that the joys are out in the picture maybe judges who would be better one of the difficulties with defamation the serious problem with defamation is that it is done by a specialist bit of a law profession a specialist barrist doesn't mean I'm not one of these people because I help out people like my society who do slightly different things there are specialist barrists and specialist judges and so they get used to how things work in their own field but they don't have the what I think is very good for any lawyer the experience of working in other bits of law where things ascend so if you have a Michael judge who spends most of their life hearing claims for medical negligence and awarding relatively modest sums for suffering someone came in front of them and said I've been slightly embarrassed I should have 50,000 pounds would be shared with all I think defamation will have very different figures in their mind so I don't know how it will work out we'll have to see so you've had an hour we're on to part two but there are probably no more questions to part two so we're going to have a short break because I will use my voice so this is the section which is very relevant to you and there are six different potential defences that you may have in ways of countering threats of defamation to which are very theoretical and they all overlap to a great extent why very old because the refrain that I had in the early part was that lots of things have been abolished and replaced by slightly different things but here there were a lot of decisions that we wouldn't abolish lots of things we have lots of things that are all very similar so we'll start off with a question about whether there's publication at all remember you have to publish something you have to be a publisher in the defamation sense in order to be liable to defamation now common law it didn't matter what you knew a printer could be a publisher a printer servant was held to a publisher they nearly clamped down the press they said that a newspaper vendor selling newspapers was held to be a publisher so almost anyone who communicated things was a publisher now there's an old decision in the case of Bunton Tide we said that an ISP that is a communication provider someone who simply provides the pipes wasn't a publisher at all despite how they were moving Dothametry material on their network now some quite a few defamation was by that bit surprising because almost anything you did was publication it's probably right but it's a question that hadn't come up before and one of the reasons it hadn't come up before was that the obvious example where we'd have met this publisher was the post office the post office had crown immunity so it was never liable for Dothametry statements that it shoved around in its network so this is a question they weren't really dealt with that's good if you run a pure pipes service but the question is well what about if you don't run something which is just a pipe remember Bernan Dean case of Bernan Dean notice left on the club room wall the people who ran the committee who ran the club and actually owned the club building were held to be publishers because once they knew about the notice on the wall and left it there and that they were responsible for removing notices from the wall went on the wall they were held to be responsible for it so the question is were they were publisher before they knew about it can you be publishers of things that you didn't know about in case of Godfrey and demon internet which is about usenet hosting demon internet was hosting the usenet server so they were hosting the files they weren't really allowing access to usenet because anyone not know what usenet is it's a very old pre-internet way of having forums and communication which is distributed and so it exists on lots of servers which transmit information between them but it meant that demon had a usenet server and there was a posting on it which was the current training and the court said well they're publishers even if they didn't know about it because it's there and they're making it available another case called Tami's in Google which is about blogger which is a blog platform we didn't guess the court of appeal said no actually probably you're not a publisher you're just hosting information if you don't know about it you're not even a publisher we're not a publisher you can't be niable in the first place so what Tami's in Google is that it wasn't necessary for them to make that decision there's a principle of English law that if a court doesn't need to decide something then their decisions about that aren't binding law so their opinion is well of course we were thought but it's not binding law on us so we still don't know quite whether being ignorant we're not a publisher even more generous decision it's a case called metric policy in international schools and design technical this is about inflammatory snippets and the judge said oh those snippets they're not really published by Google at all because Google doesn't know what's going to come up it's just their algorithms that produce it now there are other cases in Hong Kong places like that where courts have said no hang on they don't know what's specifically going to come up but every bit as much of a publisher is to sell their own stuff because they don't know what's in the newspaper Google knows what's going on they know that the snippets aren't appearing purely by accident they wrote these algorithms to pull them out they may not know what the text is but they still have responsibility as a publisher so again it's not clear where the line is drawn but that's the good news I think that the courts are beginning to feel that a lot of passive stuff doesn't even count as publication so that's a resistance that people put up yes in cases 2 and 3 look like identical cases of publication except that they're shifted by about 20 years they are shifted by about 20 years yes is that the previous point about how the perception of things to change things are? no I don't think so I think it's just a different group of judges and also isn't the judgement in the first case that's an impressive point in the second case? well in the second case the second case is in the court of appeal so it's one level higher the first level this has been an issue that was argued about but the thing is that there are usually other defences in fact there's a whole rung of defences so usually it doesn't matter because usually even if you lose this backhaul you win some later backhaul that's why it didn't matter in Tammys and Google in Godfrey in Godfrey after they knew they didn't get on or remove the post so they were definitely in it because they knew about it didn't do something about it but the court held that they were publishers they were publishers before they knew about it so it seems to be the case that if you know about something being a commentary on your website they are a publisher so what do you do about that? well there is a defence if you're a publisher even when you don't know or innocent dissemination it's only if a court excited that you're really a publisher and you didn't know again I don't think this is going to be very useful to you because there are other better defences but it's useful to you to know about it because you never know it's available to a secondary publisher it's somebody who isn't the originator of the statement who is essentially a technical publisher like the newspaper vendor and the defence works like this you say well I didn't know I didn't know about the publication to take a libel or was there a kind of like to take a libel so a newspaper vendor might say I didn't know there was a libel in this big newspaper and it was the Guardian and you know there was a son but it was quite an art but no it was something that was a kind of like to take a libel and secondly thing is that you can't just not know your lack of knowledge has to be what not caused by your negligence so I don't know how to come up very often but if for some reason you don't get to take advantage of the next much better defences and you didn't know about something which may have been something that someone might see because they have no knowledge of that might help you right defamation like nationalities you will have known about it when they some of you will have noticed when they serve a claim on you yes you will know about it but you might not know about it first you hear about it could be a claim form coming to your door they shouldn't do that they should send you a reaction letter or they mis-address it or to some technical reason you don't know about it so you don't even know anyway this is a better time defamation out in 1996 tried to prove essentially that someone was a bit like in his determination but a bit better and for this purpose they invented three categories of people authors, editors and publishers and I suppose a fourth category which is everybody else the author is the person who originates it the person who wrote it editor is somebody who has responsibility for the content or the decision to publish the defamation so it definitely means an editor as in a newspaper editor most of the time anyway but it will probably also include someone who moderates comments that is pre-moderate decides whether they go up in the first place somebody comes on afterwards and says in response to complain but someone who looks at what comes in says yes publish no don't publish that makes you probably an editor yes that might make you not an editor especially the only time this has really come up is when someone who is proof-reading is an editor and that is someone who is proof-reading because all they are thinking about is proof, proof, proof so if you have a spam filter that is fine because it is a machine but if you are just spam checking and you have got some lowly squirrel who just thinks about this and doesn't think about anything else that domain isn't the right that address isn't the right if you are not reading the content then you are probably not an editor and the last definition the third group of people the publishers the word publisher in Defamation Act 1996, Section 1 doesn't mean the same thing as a publisher in defamation law a special, narrow and more technical because obviously it might be easier to have two words mean different things in the same area of law because that is not confusing at all believing when I started studying defamation our electorate did not make this clear it was not clear at all a publisher in the context of Defamation Act 1996 means a commercial publisher someone who commercially publishes everything which in many cases won't be you because in many cases you won't be commercially publishing quite what that means is I'm clear there is a yes there is a I don't know what the point on that was there is a very odd case Amazon was found not to be a commercial Amazon was found not to be a commercial publisher it's website is very odd to Amazon is a commercial publisher of something but it's website is not something it is commercially publishing because it's just lying it's lovely when you think of things in law Amazon's website is just like the catalogue isn't it like my catalogue it's a catalogue and if I'm a bookshop Amazon is just a bookshop isn't it they're sending out catalogs and if I said I'm a commercial publisher so I'm not a publisher so a very generous decision in a there was an argument between someone who sued Dawkins at FFMH and a lot of other people and a horrible spark carried out in the reviews and comments of books on Amazon's website and Amazon brought in as a defender and they weren't let off because they weren't even a publisher of their website and that would be really good if it were true I don't know of that you know, are my society commercial publishers at their website really I mean they make money because people like their websites and go and buy more websites from them but I'm not sure that makes them a commercial publisher so this might be great but we don't really know quite what that means so if you're not any of these things what does that mean if you're not an author or a publisher then you as I said I'm really not sure about this don't rely on it too much because it might be that what you do turns out to be hell to be a commercial publication obviously for a charity you're misliked to be a commercial publisher but the reptured parliament used this phrase commercial publisher which is not a term not a defined term in law anymore and it's not at all clear what it means and please really just need to be frank sometimes so once you've proved that you're not I am not an author or a publisher what does that mean it means that if you took a reasonable care in publication which presumably means reasonable care to avoid publishing liables and you didn't know and had no reason to know that your publication caused or contributed to the publication sorry that you caused or contributed to the publication of a territory statement so it's like an innocent dissemination defence but it's a bit stronger but it only applies to these people who aren't authors, editors or publishers and it, lack of knowledge truly lack of knowledge is fine so random comments on your site, random contributions that no one is to suspect if you're found a tree you'll probably find a few people there if you do things that are likely to attract defamatory comments defameyourmp.com people for example lists everybody, find your enemy say something good about them and insult your enemy that is something that you might be found to be not telling reasonable care unless you actually sit down and be moderated these things so it will depend on what you're doing better and much better defence is section 10 of the Deformation Act 2013 this is much better defensive it's as that as it applies if you're not the author editor of the same idea in this case you get off if it isn't reasonably practicable for the claimant to sue the author, editor or publisher that's what it says not reasonably practicable so the idea is that you say well I know there's a defamatory statement on my website and I don't care because you could join one go and sue the person you made it and it's supposed to be fair because you might not know you will generally often have statements that you really don't know you can't judge whether they're true or not you can't judge whether they're on most opinion or not and the person you made them might want to keep them there and you might not you want them to fight it out you don't want to be involved so the idea is if the claimant could sue the actual author it should but we don't know it's what reasonably practicable means I mean, suing people is part hard you could pay a fee, fill in a claim for and do loads of stuff so what would not be reasonably practicable for example, is it reasonably practicable to sue someone who's in America to certainly do it why not but you might say and I've read some academic opinion that says what if they're in America it would be very hard to sue them successfully and Americans don't like the information judgements from England and so poor old claimant would sue again nothing because they would be able to enforce their judgment that's not what the act says the act doesn't say is it reasonably practicable to do where is it reasonably practicable to get damages just as it's reasonably practicable to sue them to it to ensure it's a claim against them and that's certainly not very hard it's harder for someone in America because you're going to get permission from the court to serve outside the jurisdiction and what your MPs thought was this will deal with anonymous posters someone who blogs anonymously comments anonymously someone who whatever contributes anonymously the claimant won't be able to sue them because you can't sue someone who don't know who they are and therefore they will they will have to sue the website that's nonsense you can sue people even if you don't know who they are I suspect most MPs don't realise that people seem not to understand it but you certainly can but in the early case where we sue people we had no idea who they were the courts have expected that you can sue people by description so um this is the identity of a defendant in one case the personal persons who have offered the publishers of the Sun Daily Man, Daily Mirror and Newspapers a copy of the book Harry Potter at the Order of the Phoenix or any part of their offer the personal persons who have physical possession of the copy of the said book those people we don't know who they are but we're suing them and that worked I was involved in a claim where we wanted to get an order and a judge to sue people who were sleeping in a doorway in London so we sued them as people who have been sleeping in the doorway of work in whichever address and we asked to ask permission from the court to serve in a plastic bag stuck to the door because obviously we didn't have that address that was fine so what I mean, what I'm saying here is that it actually isn't very hard easier to sue someone for example anonymously on a blog than you might need to sue someone in a manner because you simply ask the court for permission to serve your claim on them for example as a blog comment if you've got a blog, if they've got a blog on their blog if they tweet that as a tweet you just tweet a link to your claim for all these things have been done and the fact that you don't know who on earth it is you're suing, that doesn't matter you say well why would you care there are various reasons why you might care you might find out who they are later and you want me to get the claim in now and then it will turn up information will turn up you might want to win a claim against them to vindicate your reputation you might want to win a claim against them so you get an order that things are removed from the website you've won a defamation claim and the fact that you don't know who the defendant is doesn't matter if a defendant wants to defend they've got to give an address that's the rule of the court they can obviously ask the court to keep anonymous if they're particularly concerned that happens occasionally that hasn't happened as far as I know in defamation claims so there's a problem with section 10 just go back to it for a second isn't it all clear how this all works nevertheless the defence is that you're not the author for a publisher but it is reasonable yes that's right sorry it's a bit confusing I've got the negative the wrong way around the way the act is specified is exactly this way around so what you do in responding to a claim is if you look up the the offending information and you think it should be easy to respond your response is I think it's reasonably practical for you to sue them so go and do that c-section 10 and see what they have to say about it that's new law that's new law yes that's the general answer so do you think that defence implies you can keep publishing unfortunately no there's no defence that you've thought it's applied has to actually apply if it doesn't apply you just keep publishing it you can publish it up until you get to court order to roam again so that's a powerful defence if someone creates a source of data and buys a source of data it's an open data so it's a third party and you then release it if you've chosen the data it's all automatic no but if you've selected a data set and you've chosen to publish it you're probably an editor because you've probably taken responsibility to publish it if you had a site and people were writing your comments obviously wasn't anything on the commercial publisher of that website so if it's a paid full site or possibly if you're monetising it it's your business you monetise it to your adverts and if you make money by people commenting on your site then you're probably a commercial publisher but you're not if that isn't your business and you don't make any piece of that and if your brother's like the store of the library and the site of the website and you get your art you've got no idea what's on it I don't know that depends whether you count as an editor or not I suspect you count as an editor because you're selecting things but you might not the historical perspective is a bit more of a storage data I think it's a point which is probably arguable when I last looked at the law on editor it didn't come close to answering these questions and all I can tell you is what the test is which is whether you took responsibility for the publication on the content you're not taking much responsibility for the content you're not looking at it the reality is you'd have a reasonable shot at arguing it's certainly something you could argue with a straight face that you could argue it with reasonable force and I think courts would want to find in your favour they'd want to help you out but I don't know I'd have to look at more case law to be sure and even then there probably isn't enough to give us a clue Have there been any the information that 2013 case of any substance was cooked about serious harm otherwise nothing because people have been suing unpreact things or in cases that I have dealt with they've been suing on things that overlap but all the argument has been about the stuff up to 35th of December 2013 because after that we have so many more defences right now section 5 is another defence this is a it's going to take a while so be patient it's potentially very useful but it's I don't know the headline point is it's optional like all defences you don't have to try and use it a lot of the discussion about section 5 was nonsense because it suggested there were things that you have to do there's a lot of procedural things that you have to do if you want to take advantage of the defence if you think I don't care I don't want to get involved in that game then you don't have to do any of these things so that's a headline point none of this is required the idea is a complainant comes along and complains about someone who's been posted to your website this is a website's pursuit the word website is using the answer it does not apply to things that are websites I don't know if API's captured websites but it certainly doesn't count things that the dead of old HTTP I thought but the idea is that complainant is made about someone who's been posted on a website the website operator then says to the person who posted it that it says to the person who posted it do you want to keep it or not if you don't want to keep it um then I'll take it down otherwise I'll keep it up by the way can I tell a complainant who you are so that seems like a reasonably sensible sort of thing but in fact so it works in detail so that if you want to defend yourself using this you have to be an operator of a website and you mustn't have posted the statement yourself so that's the first round in the battle you have to be an opposition the claimant can only then sue you if three conditions are met the first of them is they couldn't identify the person who posted the statement this is all about anonymous people they hard identify them then that's step one they must give you a notice of complaint that seems straightforward but there are rules if they send you something which doesn't count as a notice of complaint it's still good enough provided they've told you that there's some defamatory stuff a defamatory statement on your website more of that later and then they win if you the operator of the site don't comply there are very detailed rules with sharp time events so this is a problem if you follow those detailed rules with sharp time events you're off the hook person here has to be a person after learning the English or a group of people no it can be a corporation but it has to be a legal person well I assume that's what it says person who posted the statement someone will have posted the statement for human persons but corporations shouldn't be doing that to you so that the reason you might not want to engage in section 5 is because you might have to deal with this relatively detailed procedure you don't want to have to you don't have the staff or the time order or whatever the energy you're just a two bit outfit you're nice people doing good things on the shoestring so you can't do this however you should know about it the point about identifying exactly the same question what does it mean to identify the person does it mean the only clarification it gives about what identifying means is you can't identify someone if you can't sue them you've already heard that you can sue people if you don't know who they are so that's not very helpful but if I know your email address and I identify you a Twitter handle again, totally unclear what that means on the the sharp teeth if you've got a complaint policy a complaint policy that says we will do such a few paper on our website if your complaint policy doesn't match the law no it doesn't make any difference your policy doesn't make any difference so they are very detailed but they don't say anything about having a policy provided you do what you're supposed to do even if your policy is different that's fine so plenty of cases where something is reported but it ends up in the inbox of a technical team technical support team or a customer relations team or somebody but not a legal team it's no good to say this isn't my job you must now apply properly through this email address you know you know that there's talentry material you've got to at least think about what you do about it anyway the notice that it makes doesn't have to go to a nominated email address you just have to be sent it yes section 10 applies if you're a publisher so section 5 applies if you're a publisher section 10 doesn't so section 5 can apply in situations where you couldn't take advantage of section 10 if you're not then that depends it may be right in the strict sense because of the clarification of what identifying means as the section 10 is very good and you can usually take advantage of section 10 if you take advantage of section 5 but I wouldn't like to wouldn't like to absolutely show about that wouldn't it be dangerous with a policy to identify yourself as using section 5 they say you made your policy to identify as section 5 does that identify you as a publisher no basically section 5 is specifically to take certain boxes and just start to make a difference being a publisher or a publisher makes a difference to section 5 would that prevent you using section 10 no so when you say it's optional if you get noise if you're on section 10 and section 1 is the exact if you want to avoid it yes you're only private if you want to take advantage of this it's a good defence in certain circumstances right so let me go into some detail the notice of a complaint has to have these things in it a whole bunch of stuff it's good to tell you who the complainant is going to have their name and electronic mail address so you know who's giving the notice it's got to identify the statement itself and some of this off here it's really proud of this library it's on actually got to say what the statement is and where it is that may seem like an obvious point but there are plenty of notices and complaints that websites receive telling that there is a defamatory statement on your site about me now you can usually find it but as long as you can't you've got no idea what they're complaining about so the idea is to actually get some information about what the problem is the complainant also has to say what they say that statement means and why that statement is defamatory of them because you will sometimes find some complaints about something you look at it and you can't see you simply don't know why it's defamatory in particular they've got to say if they think any of the bits are factually inaccurate or any of them are opinions that are not supported by a fact because you might decide having got a notice there are pieces of pieces only of the statement that can be redacted some of the things that they know has done a number of times is to remove bits of a response of a question which are either clearly defamatory or clearly problematic and leave something that's tidy and that has dealt with a lot of complaints but you can only do that if you actually know what they're complaining about so it's a very important statement the complainant also has to confirm that they don't actually have enough information to sue the poster but what actually they have to confirm which is odd is they have to confirm that they don't have sufficient information to bring proceedings against them the test in the defence, of course is that they can't identify they don't have to confirm that they don't have enough information to bring proceedings against them which is odd so confirming something that may not be necessarily relevant and they have to say whether they mind being given to the poster maybe they're embarrassed and shy about this or maybe they'd like you to tell the poster their name and address because that'll make the poster more scared who knows you then have 48 hours for the purposes of most of the discussion that we've had so far no it doesn't count as knowledge the question is whether you don't know but do you have ground to investigate now some of the defence that I've discussed that we'll discuss you may have to do there may be an obligation to investigate in some cases knowledge all you have, all the early test the question is knowledge another question is knowledge or information that makes you think it's likely or did you take reasonable care and in those cases you might have to do a search so what do you do once you've got one of these notices you have 48 hours to comply you said it doesn't matter where assuming they sent it to the IT support department the section price there's nothing about that they just have to give you a notice does the time limit of 48 hours apply if they fail earlier in this procedure to, for example, attend to where or what it is well hold on, no no no you get the notice you have 48 hours to do something about the notice does it not have to comply with the you just have to do something let's get on to this I was going to say the 48 hours the courts have a power to extend all the time limits so you could say yeah we didn't respond to it in 48 hours because they sent it you know at a bank holiday weekend knowing that we would have played more than 48 hours ha ha ha ha if the notice is defective what you have to do is tell the complainant within 48 hours that it's defective and what you have to say is that it doesn't comply with the requirements to see the act and also what those requirements are but you do not have to say in what way you think it doesn't comply I've been in this situation when some early section 5 stuff has happened and it's like what you should probably be useful for you to do is to say you didn't include your name and address but you don't have to do that you just have to say it doesn't comply and this is what you have to do it's like totally unnecessary and pointless legalism it's like always to say what I think is wrong with that notice because it shows willing and you know of course getting more sympathetic if you're not overly loyal question so they have to know that we have to notice do they have to be this person that we know we have to know we have to notice yeah so the obligation remember you don't have to deal with any of this you just sign up to what was section 5 the trigger is that there's a a notice which says that there's a differential statement on your site that's the starting point so they may not know you can just respond you've sent me a notice it doesn't follow these regulations and these are the requirements and then they've got an option to come back to you with the proper notice so once you've done that you've actually got a correct notice and only if you've got a correct notice you then have to this is all still within 48 hours of the poster electronically it's no good if you can sit in the room and talk to them that doesn't carry for some reason why who drafted this but you have to contact them electronically if you can then you must send a whole bunch of information which you can read in the notes to the poster and the information is essentially this is what's been complained about most of the information you've had for the plane is the same in advance if they weren't happy for creating a decent line and you must also tell the complainant that you've done that I am now contacting the poster and I'm not interested in your notice if you can't contact the poster you must remove this statement within 48 hours and inform the complainant that you've done just that sorry, you are the very back no Francis 48 hours 48 hours yes, that's hours hours, yes what you're required to do is send the information as far as I can tell that's all that's required so if it bounces that's not your worry sorry, say again well, if you know the poster address you probably have to then post it the point is you've got 48 hours to send you don't have 48 hours for it to be received okay, so that's what happens then the poster can then respond to you you want to send to them a notice which says you must respond within five days by midnight on the fifth day after we've sent this is a fact that time will be if you get a response the logic of this is so convoluted I'm trying to work out how to address this there are three circumstances where you might move the statement if you don't get a response in time at all if the response is defective doesn't have the information it's supposed to have any response poster has to say a response whether they want to keep them the post and their name and post on the address if it's got an obviously false name or post address in it any of these things then fail you have to remove the statement and also if the poster responds and says I have to remove the statement you then have to remove the statement and all these things have to be done within 48 hours either get a response or the midnight deadline coming however if this poster manages to respond within five days it's not worth it today it's probably done on the fifth day but you inform the complainant sorry then you can keep the then and only then made the poster stating in all setting circumstances within 48 hours you have to inform the complainant and you might say to the claim either the statement is going or stating whichever the poster has to say whether they consent to their name or address the response of the complainant the poster might say please keep me tell the complainant that the poster wants it to be anonymous if the poster says please file a means forward my name and address so I can be sued then the complainant has to be given that name and address all these things within 48 hours otherwise you lose the protection of section 5 notice that all of these things are unfavorable to you so the complainant can screw up and send you bad notices and you just send the complainant and it's about getting it right accidentally send you a defective counter notice tough the statement has to be removed so it's a very one sided piece of legislation now none of that applies in one circumstance if you were doing it flowchart you'd check this first but I thought it was confusing if the complainant says to you at the same time you just thought that this is something that will be included in the notice but they just have to do it at the same time and they don't have to do it in writing so they could tell you on the phone it's bizarre isn't it everything else has to be writing if it doesn't the complainant has to tell you that they've sent two or more notices on previous occasions in relation to the statement so the idea is this is supposed to deal with situations where the poster keeps putting things back they're going to remove or there's repeated repetitions of essentially the same defamation now if the complainant yes do they have to actually have done that no they have to have told you they've done that but it also has to be true that this is happening um so the next test is if it is in fact true that on two or more previous notices of complaints about the statement sorry they have been two or more previous notices of complaints so there's been more than more than one previous complaint about the statement um and the statement that all the previous complaints have got to be made about a statement that was posted on the same website by the same person and conveys the same or substantially the same invitation as previous notices so the point is that you have a series of notices about statements which are not necessarily the same statement they could be different but they want to contain the same basic label and same person, same website so they've been on another website that you have to manage or they've been made by several people tough in those cases um sorry the third condition is that each of those previous occasions section 5 was invoked and under section 5 you remove the statement so if you remove the statement you didn't like it or you had other reasons for removing it or they didn't use section 5 or the statements were left alone this doesn't count because it's only for someone who repeatedly defames and was repeatedly slapped down under section 5 in those circumstances you have to remove it straight away know what you don't ask the poster because presumably you've asked them three times and they've both times for some reason you've ended up removing the statement who knows the model in section 5 is that people post things to websites there's no section 5 does not know about the possibility that there might be a what is this RSS feed it's possible it's possible yes a core could decide either way I'm afraid well who knows if the RSS feed is a website then it was posted to the RSS feed I'm just telling you you can go with that the two things are section 5 of the act and then there's a set of regulations made under that go and read them sit down have a cup of coffee and draw a flow diagram that's all you can do at the moment there is no case but on it this is the problem with technology specific the more technology specific you are the more ludicrous it gets I don't know I don't know enough about the drafting of it it looks like a voluntary review because it's always been working no I didn't think about it no I think this is the point is that the second this is an example of why it's particularly bad the section 5 was drafted obviously by Parliamentary Council Parliament debated by MPs hacked around in Parliament and then a bunch of civil servants put together a different group of people put together some regulations that plug into that because you've got two different documents but after it by different people trying to work together not a good way to make a good decoding report ok now we come onto something else this is really nice this is a much much nicer piece of law it's older than the 2013 act the e-commerce directive now the e-commerce directive it's got one serious defect which I'll come to but it's great in many other respects the e-commerce directive applies to the whole of the European Union in fact the whole of the EA so this is good because it's something that you would rely on in France and Germany just as much as you can here the directive is about a whole bunch of things that do with e-commerce what we're supposed to have on your website and how you're supposed to respond to e-commerce orders and things but it has a nice little section in it about the liability of intermediaries and in the in the e-commerce directive they decided to give three example situations in which someone could be an intermediary there was discussion about other other kinds of ways of being an intermediary that the people who drafted the directive that there are all sorts of ways of doing things that are sort of a network but they decided to give these three well-known examples and countries could adopt their own extras we didn't but other countries did and the three are what's called a mere conduit now you're a mere conduit if all you do is pass on information effectively, automatically so it is designed for people who have pipes of wires they move packets around they know nothing about what's in those new kits and they don't have no responsibility for them now if you're a mere conduit that's great because you're not liable for information that flows over your network even if you know it's defamatory you know completely innocent the second situation is if you cash stuff if you rather cash of some kind like a web cash or through an ISP all sorts of cash that you might run you're not liable for stuff in the cash provided it's just there automatically that you comply with standard protocols for removing and aging it those are problematic what you care about is hosting which I'll come on to define in a second but most of you will be able to take advantage of hosting it's the definition of this now the great thing about the e-commerce directive is that it provides a defence against almost all forms of liability there's a small number a four or five kind of liability for information such as competition that you can't use the e-commerce as a defensible but you can use it for everything else, particularly defamation you can also use it for intellectual property or privacy but you can't use it as a protection against data protection data protection is a big deal because if for example you have a featured video of people beating up somewhere down as Google did Google in Italy you can't say we're just a hosting provider we don't know what people push on our side that's not something you can do you have to use the data protection law which is supposed to have its own internal balance so this is great that's better than all the previous things in that sense has one serious de facto it only implies to what's called information society services and that's a big deal if you're an information society service and you post information then you're laughing but if you're not an information society service then you don't get any of these protections and the requirement between information society service which we've come on to isn't some gratuitous piece of of European legislative concepts the reason there's a restrictive information society services is that the EU is only competent to legislate about certain things it can't legislate on everything it can certainly legislate about things that are to do with commerce community common market commerce is fine but they can't legislate about everything that may be a problem for us I have no idea where the bottom line where the bottom rung of economic activity falls I don't know whether my society my society always can be an information society service but and quite a lot of what they do could sort of be an economic activity or it's the kind of thing that could be an economic activity in other contexts but the question is whether it is hard to know there's a question you're going to ask that might well be an economic activity so the reason why is there this little no at least because that some form of economic activity is in the treaty the free movement of services service has to have for it to be something that the EU look and bite on has to represent some sort of economic activity there's some very obscure economic activity there's some very obscure old stuff about freedom of movement of services but whether that still applies or not I don't know one year, was it your year or not I set a question about to the LLM students about this maybe it wasn't your year I set my students a question about this hoping that they would go in Delving and get lots of interesting stuff out of that service but never produced an interesting answer so that was a bit funny yes in the first point there is there an understanding of whether normally quite it means you normally charge people for it or this is the kind of thing that other people might charge for it I think it's unclear but I think it means the kind of thing it's the kind of thing that would normally be paid for by somebody if not the user I mean certainly free educational service I mean if I go to school secondary school in the UK that's free but somebody is paying for it and there is some economic stuff going on there I think of course it would be quite generous of our amount so sorry not to be able to really nail that I just don't know the answer however most yes sorry no because there's been no case which has rejected something as an information society that there's some very obscure old stuff but I can't remember anything that's all too many so yes it would be great if we knew generally you know you approach these things on either side so this definitely isn't this definitely is everything so far has been so but bear this in mind I mean if someone is paying if you're getting grant funding for example you know there's money coming in which there might be not everybody and you might be running things where there's no money at all good for you but you might say this is the kind of thing we're unusual this is the kind of thing people would pay for I don't know but if you get over that it's rather good hosting much like this hosting is a situation where you store information provided by one of the recipients of the service and bound onto your control so you're not asking people you're not sorry maybe asking people you're not to write content for your site and that applies to Facebook and Twitter comments on your site and all sorts of things isn't that the whole site could be the case that some of your site you write and the rest of the people contribute that's fine it's the bits that they contribute you're a host even if you don't host the rest so you have absolute defence if you have no knowledge and their actual knowledge is the phrase used of the wrong associated with the information what that means is not that you don't know about the existence of say a case of defamation a statement which couldn't be defamatory it means that you don't know that it's defamatory and there's a little qualification to this that you don't you don't have not quite reasonable grounds for investigation but you don't have defamation which would make a responsible information of the society service have an investigate on it so if someone sent you an incoherent statement that incoherent complain and says you know this is really horrible defamation and lies and you look at the statement and as far as you can tell there's nothing wrong with it then that's certainly fine you don't have to do anything about it because you don't know someone might have given you information to know anything about it so it provides a slightly better defence than some of the other defences even if you do know you're defended if you act expeditiously to remove or disable access so what explicitly means but it's probably contextual so it will almost certainly include somebody sent it to mine to some stupid email address other weekend expeditiously almost certainly won't expect you to do anything within 48 hours expeditiously will be contextual if you're a big outfit and it's the middle of the working week and you sit on your thumbs then you're more likely to be in trouble then if you're a small outfit and it's over a weekend or a bank holiday one nice thing about it is that you don't have to look there's no but the phrase is actually there's no requirement to what's the word? my mind's blank you can quote me there what's the phrase? essentially you don't have to be proactive about it you don't have to seek out rivals you don't have to look for things you don't have to moderate essentially you could just ignore liability for all the information that's being contributed if you know nothing about it if they give you some information you don't have to think about it and maybe if they give you enough information that you know there's something wrong then you have to do something about it that's quite strong be nicer to have section 234 of the communication decency act which is in the super-duper and terribly mad piece of legislation in the United States which if something is a farotry on your site you can say so long go and sue the person who put it there even though I know it's the farotry and the person who put it there is dead and no-one will exist and you can't sue them well that's just tough and even worse you have a situation where social privilege voice is over the top because you have a situation where you're sued by someone says I want to sue you for this the farotry comment and you say well it's tough go and sue the person who put it there and you say yeah but the person who put it there it can't delete it because you don't have a facility for deleting it and they've admitted it was wrong they want to delete it please delete it and say well no we're not going to delete it because we can communication decency act is hilarious because it's an act which is supposed to stop indecent things on the internet and 234 was added as a protection for websites that they would get caught by this rude draconian anti-free speech bit of legislation which is all but 234 that's struck down by the Supreme Court as being anti-free speech bizarre thing communication decency act anyway that's another matter now what about hyperlink it's just a little thought it's much less interesting now than when we started can you be liable for linking to the farotry material and nobody really knows no one really knows much about this but here's the thought some old cases when we started out we looked at these old cases which gives some ideas her than what is a case somebody was found sat by a side of a road on the chair speaking of mine and next to him was a placard and on the placard was a defamatory message and the person sat there for some time for an hour or two pointing at it the question was good good case early 19th century case the question was were they publishing this information and the answer was yes they were Laurence Newbury's other case where the some wrote a letter to the Times and referred to a statement made in the House of Commons in the House of Lords the statement was a defamatory the letter wasn't just referred to the statement you people might want to read the Hansard's report so it's suggesting people go and read the report now the statements made in the house a Commons or Hansard's report are absolutely privileged you can stand up there and say whatever you like if you want to get a defamation out talk to an MP, get them to stand up and say it but the letter was found to be publishing it and that publication was not privileged so that was a defamatory publication it's not a different case Smith and Wood people used to have lots of fun with defamation in the old days when it was that expensive so Smith and Wood is about a case where somebody had heard that Mr Wood had a defamatory I think it was a it wasn't a woodcut it was some item and asked to have a look at it some third party came along not to this person though I told you about this defamatory that was found not to be a publication so who knows so that tells you that we know nothing but in Crooks and Newton in Canada the Supreme Court of Canada had a think about this and they said oh no linking can never be the belief judgment is linking just can't ever give you liability if you link to something that happened to that just can't be minority norm not dissent because they agree with the result but they said well no surely it's got to depend on context so if you just link to something and the link happens to be to a defamatory statement that's not a problem that surely isn't publishing it but if you say hey guys I completely agree with the sentiments of so and so at this link click on it and see to let it on thick that sounds very much like your adopting their life it's not clear I think that's probably the right answer I think a call a call is great to context will say well it depends on the context sometimes it links are and sometimes they aren't but there's a couple cases where it's kind of had some relevance it's kind of interesting Budo and the BBC court said well material has been was linked to an article what happens the court decided what counts was not just the article but some of the link material counted as part of the article so that's context by reference much the same thing happened in Islam expert spectator case in 1828 but Grant Dawkins that's an interesting point that one of the websites that was viewed in that case had another dotnet website which was kind of the enterprise that was the home site the question was whether the links on the main site that took you to the dotnet site meant that publishers at the first site were in court by doing what was on the second site and the court said well there was a home button which suggested whoever publishes the home go here might be held to take responsibility for the site that they are incorporating that's a very strong position the court was like normally if you just link through to a site that probably doesn't incorporate the site but if you have a sort of go to our main site button then you'll probably be taking responsibility for it we don't really know and I think it's much as important now because if you can get out of any liability for a whole document so you don't care about the links any because you don't care about the content no, let's hold a bit of a misunderstanding we had a question about the identity of the claimant so let's talk about that you have to be able to identify the claimant but the claimant might be identifiable but only by reference so the man lives in the house he's been a file X is a legitimate where X is known these are all potential liable because somebody can identify the claimant sometimes the identification of the claimant is a legal innuendo so if someone new additional information some group of people know who it is even if most people don't know who it is you spend a column and have what's up with your column which is a sort of attempt to be witty things about society but it's not a good idea anyway, they wrote something about a fictitious person called Artemis James and all the things he was getting up to and there really was a person called Artemis James who was nothing common that various people who knew Artemis James thought it was meant to be him who was doing these things that was an implication he was unable to his wife so he sued successfully on the basis that though a person who wrote and said the blinds hadn't knew the kind of city name for somebody that sold me if there really was an Artemis James and that Mr James succeeded in liable now, the odd thing about that I suspect there's a bit more going on sometimes cases appear to say one thing but there's a subtext which everybody knows but nobody talks about in this case Artemis James probably wasn't an accident Artemis James had done some writing for the relevant journal a person who wrote it knew the name it may have been a subconscious it may have been a kind of who knows but I suspect there was more going on there than meets the eye O'Shane and MGM, that's the very odd case this case where someone succeeded on the basis that a photograph looked quite like them I'm not sure that's right and it's certainly rather dangerous but you can claim someone only if they can be identified but identification can be done in context with other information and it can be answered now, class liable you certainly can liable a group by liableing all of a group but an indefinable an indefinite group generally can't be liableed so I could liable you by saying you whatever telling someone else that you were but all lawyers of thieves is famously not alive lawyers do not sue anyone who says that they can't bring a class action otherwise we could be very rich we'd be suing everybody all the time so that I can't remember the case that slipped my mind but sorry this means in practical terms that you will get allegations of liable and you will look at them and you might not know whether someone is being referred to and that's a judgment you might have to make it might be that you ask the person complaining who are you saying this is about you're saying this is about you why'd you say this is about you next thing is the only significant group of people who can't sue are people who are dead you lose your reputation when you die so you cannot say what we can defend as much as we like for example Jimmy Savile say all sorts of things Jimmy Savile has no reputation if he's still alive but you can liable the dead as much as you like there's no problem there and the other thing is some public bodies seem to be unable to sue Darbyshire once tried to sue and of course arms of local and central government can't sue they have no interest in reputation they are democratically elected bodies but Jolly Weller will to be sued and that appears also to be true of political parties so a conservative party cannot sue you for defending them but unfortunately universities can even though universities are kind of like public bodies they are public bodies for the purposes of human rights and you can use freedom of information requests against them but you can also defect them and most trickily public servants carrying out a public job can sue for defamation and the US is very different the US is very difficult for anyone in a public position to sue for defamation about the way they carry out their public functions a general defamation of an organisation probably isn't a defamation of the offices but it depends on how you phrase it when saying that a council is something bad isn't a defamation of the offices because you'll be right to be a member of society you'll be careful reading the thing that you would necessarily criticise in particular offices because we all know that there are lots of collective things that could be management failure somewhere down the line you don't use the blame but sometimes it can very much sound like the criticism of an individual and a potential defamation and that's something that does happen to people who want companies or organisations that want to sue who get their directors and or employees and or officers to bring their claim funded by them by proxy corporations can also sue as we know from the McDonald's case they can only sue if they have a trading reputation within the jurisdiction there are other reasons why that doesn't matter anymore a serious financial loss but a company which trades exclusively outside the UK has no trading reputation in couldn't sue here ok so another interesting thing which I think is kind of relevant it's a quirk of defamation law almost all kinds of claim in English law have a time limit there's an article in the limitation at 1980 which sets the timing for almost every kind of claim that you can make and for libel it is one year which is pretty short a lot of claims you have 6 years so you have to get off your bottom and make your claim or let the thing lie that's not helpful there's a possibility if you get extended if you have some jolly good reasons jolly good reasons for not having more claims during the year you can go to court and say please give me more time but I didn't get around to it I was a bit puzzled I wasn't sure you have to be something pretty strong so how does that affect you if you come on to it save the question until we bounce it in just a minute the youth bureau that every publication created a new cause of action for libel and the case of Duke of Brunswick Harmer sending his chap to a newspaper archive that was a new publication and time ran against the clock started from the moment that his servant got it from the archive even though the newspaper published it 10 years previously so it was old news but nevertheless so there is a concern there was a concern that it was very unfair because it made archives difficult there is an over concern I'll tell you in a second but clearly if you just said very simply once you published it that's enough and when you start from the moment of first publication it never again the problem with that is you would arrange a sort of small scale publication to your friend or something like that and then wait a year for a book or something which is hiding the fabric tree and then publish it on that it's all about to be published because you could have gone into the archive before it was published in the streets now obviously there's a concern about the web because theoretically every time you serve your web page up for publishing it again never ever will the time limit work for you in practice the court and lawyers worked around this and they were around it using a thing called a luchanski notice luchanski notice is a little notice that was attached to a statement about somebody that they essentially the statement was potentially the counter statement about their involvement with immigration I think and they made a counter statement and that was added a little qualification was added to the website in italics below the report and still whatever and that was enough for the courts to take away the libel from these old newspaper archives so it meant that this archive website was such a BBC report stopped being libelous with this luchanski notice so the problem of the one year time it didn't apply it was obvious it was a problem it was taken away well that's all changed was a lot of particularly the Murdoch press very much wanted to have what's called a single publication rule which is one publication and then the year starts and at the end of it it's gone you've lost your chance to assume a publication of substantially the same statement doesn't start the one year clock ticking again so the one year starts from the first publication and ends after a year unless the manner of any subsequent publication is materially different taking into account the level of prominence at the extent of subsequent publication and the cause force could be extended time but the reason I'm very suspicious of this is that I'm constantly being defamed by the internet or rather a particularly insane individual as far as I can tell insane individual ran a small campaign of harassment against me many years ago, over 10 years ago now, more than 10 years ago which included some quite defamatory remarks about me on newsnet well that's all gone except annoying people like Google have come along to produce Google groups which they host and lots of other people do lots of people free-ride on newsnet they publish this website and these things pop up occasionally when Google changes this news algorithm so I won't know that something has been published if actually this old defamation about me has been republished until suddenly it pops up because it pops up in Google search but the reality of the web now is that things don't suddenly get published and everyone knows about them frequently things will lie there after years and then suddenly everyone will hear about them because they will be tweeted or because Google has suddenly changed the way it does things but nevertheless the the rule now is very much in favour of the people who want to do things about us okay so let's think about some practicalities you're on the penultimate slide I think your long old deal is nearly over I think the most important thing for you to do is to decide on a strategy to sit down and think what are you going to do how are you going to do and this will depend on I'm not giving an answer to this question because if you run on your organisation what you want to do with it some organisations they absolutely want to be able to hold up the family material because that's the only way of doing it properly this is the problem with yet being sued by Pymnick Llywodraeth in the news the Pymnick Llywodraeth have been going after anyone who leaves negative reviews about them on websites well what's the point of a review website if there aren't some negative reviews on it it's unbelievable no service is perfect and that's just dreadful so there are sites that are interested to have a mixture of good and bad statements and need to do that on the other hand you could have a strategy that says if anyone complains about anything well they need to remove it because you might be more scared part of that decision is going to be I'm not going to try using section 5 if you're a commercial publisher or an editor or you can't use section 10 but it requires a bit of care requires that you've got people at least every 24 hours some people who were reading an emergency email or doing something the next thing I suggest is you design a response procedure so having you decide what strategy it is you produce a procedure you don't necessarily have to publish it but a little flowchart so that people know what to do particularly if you're a small organisation that's growing you might at the moment there's you or there's you and a small number of people but later on there might be more people who might not be involved and not know what to do so having a good procedure means they can tell what to do and having designated individuals who deal with responses and more senior individuals who deal with rescue responses what I mean about that is something that I'm sure I'm not being discreet by saying that my society is thought through very carefully my society is being discreet because they don't like it that is to have a situation where this is something that's something that's complexed out of 15 lanes but if it looks like something that's quite serious or it looks like it could be quite a big problem you might still, my society might still want to dig their heels in and keep it but that decision should be made by someone much more responsible than say the volunteers digging that problem because it implicates the whole organisation so you bounce it up to someone who can make that kind of decision somebody might be, somebody organisation will be able to make a decision and will keep this even if this background so this is what this will support us because they'll be at that level of responsibility but you don't want everyone making that responsibility so once you've done all those things and you end up with a much more mature position I haven't mentioned actually it's an omission I apologise for is I haven't mentioned Norwich Pharmacall it's in the notes a bit so I'll just mention it here just a second Norwich Pharmacall a Norwich Pharmacall order it's a case called Norwich Pharmacall is an order by a court that you somebody innocent gives up the names and addresses of the guilty or at least someone on the trade of the guilty so a good example would be someone commented on your site you have that email address because they have a lot of good system or you have that email and lots more details they've signed up but the site some of the things like what they are you might have a rule you might have a policy not in terms of conditions to say I'm not going to give this information to anyone without a court order well this is that court order now a Norwich Pharmacall order the reason why you have to think about this is that what if you get an application for a Norwich Pharmacall order maybe next year what do you do because you could just and there are plenty of organisations that do this you just give that you know they go to the court the court makes the order you get the order and you give them the information in the story however you might think we want to protect the identity of our contributors there might be good reasons for that in which case you might want to make some kind of showing in the court you want to go into the court and actually put up a bit of resistance now the slight tricky you put up too much resistance on the costs of the other side if you lose the courts have said it's not unreasonable to put up some resistance in particular you can insist that there's actually a proper claim so if someone makes a defamation and it's obviously nonsense for one of these many reasons although the defences there's not about you you're not being sued they've smartly decided they can't sue you for some reason but they just want to get the information that they can sue you want to make sure and look to the judge he'll probably be a master to you master this is rubbish he wouldn't say that but you would point out why it wasn't a proper defamation claim and that might be a problem for them so that's something you might think about that's a complex bit of law anyway is there another option of telling the person involved if there's a chance to defend it yes you certainly can you can and it's a good thing to do and I approve of those who do it but what if someone wants the things and dresses of thousands of people you might want them there but aren't you that happens or you might want mostly in sexual property cases but that happens it might be there all sorts of reasons but I would just try to put them in touch with lawyers giving them the option of what your relationship with your users is ok so an example kind of procedure this is just roughly off the top of my head start off is this a complaint, is it clear if it isn't asking for information does it look like it's got anything to it if it really doesn't look like it's got anything to it maybe you are someone more senior about it but if it's very very obviously not a no use then you might ignore it and you might want to consult a lawyer or whatever you might at this point decide whether you're going to keep the statements you might suspend the statements sometimes you might decide that your strategy will involve it's obviously a problem but it's decided whether it finally just to remove the statement temporarily pending pending a decision maybe you redact it pending a decision or you redact it and then you need to think about whether the author can be sued, whether there's a section 10 defence if there is you can write strongly to the complainants say look you can sue the author here's the author's name and address if you haven't said you won't give it to them you can do that, that's just all that you would but you can decide whether you want to keep it that's not a section 5 procedure a section 5 procedure will have more context right so any questions and now you've heard all that enormous amount of stuff a practical problem we have on what they know I've said no specific questions but this is fine because what they know is the one I work with anyway go on it's a very gentle problem they often say this is a confidential correspondence and I worry that that might affect what we can do for example in taking action we like to take action publicly and say where we've removed things yes okay what's going on there is there's a law of confidence if someone gives you information and confidence as a rough rule you shouldn't divulge it to the public I'm not sure whether someone can impose confidence on you in those things because you'll counteract so which of confidence is a made up bit of law made up entirely by the courts made up entirely using a bit of English law called equity equity is very nice because not nice if you like equity has a lot of kind of flexible bits so if something is an equitable principle courts are much more likely to have an R in particular equity never always gets you something so junctions are almost always equitable which means the court never has to give you what you want so which of confidence is an example that even if someone breaches your confidence the court never has to give you damages or give you any remedy they might decide that in the several sense of some reason for example that you're a bad person that's a perfectly good reason that's not how it works in the bits of law other bits of law someone takes your and from you you're allowed to take it back and sue for damages even if you're a really horrible person and the court isn't like you so it might be that there might be an equitable principle which says in litigation I don't know because of the answer but that's a good point of reminding me if I haven't answered this in some way so could you protect yourself by writing into your policy is our policy to publish the outcome of the play so that they're making a claim it might do the trouble is that they'd have to have known about that I mean this isn't it I'm not sure why are you about getting into that each of you put signatures on your emails which can counterman the other ones no but ours apply yes I missed out completely the modern defence defence of publication in the public interest sorry that's a complete oversight just sort of thinking about the public interest yes there is there is defence of publishing matters of interest to the public what they name has always relied on to some extent the what was the Reynolds defence of publication in the public interest and that's quite complicated because you were supposed to follow good journalistic practice if you wanted to take advantage of the Reynolds defence but to show you follow good journalistic practice which presumably means hacking people's phones I mean they were supposed to have regard to PCC code of practice but we aren't in that world anymore so yes there is defence in the public interest have you mentioned this person who is lobbying this to bring deflation cases so I presume it's quite inexpensive and to prove the case he brings them he doesn't defend them yes the thing is that he only has to pay the so he's on benefits so he gets a waiver of the fees from the court so he has to pay no court fees he writes all the legal stuff himself so it costs him nothing except time and since he's retired is there any symmetry is there any way to defend against that situation yes there's a thing called there are a series of more extreme sanctions that he's managed to avoid for various reasons he's quite cunning in how he carries on that you can have someone declare you can have what's called the civil the obvious thing is what's called the civil restraint order and there are various lengths of civil restraint order so he's speaking to say you can't bring any claims the most extreme example is a civil restraint order it says you can't bring any claim any court at all under any circumstances people should ignore any claim you bring unless you get permission of this named judge in who knows you and that means that if you genuinely have someone knocks you over and you have a real claim but otherwise people could just tear up your claim form and you could do nothing about it and that's used against people who are absolutely dreadful for example it was invented by a man called Mr Banji Banji sued his local authority a lot for lots of things, unsuccessfully but whenever he lost he sued the other side's lawyers as well and then when they defended him he was interested in suing that lawyers basically anyone who was involved against him and the Court of Appeal decided that he was trying to get the address of the barras on the other side from him and they decided that he was just too dangerous so there are cases where he has progressed the initial state is almost out of time cost free, no any other questions yes sir there are many voices that I don't know that some form MP in the headline they sent he's a loyal organisation he supports those indications of a related murder of children and he would then interview why you can mention that because at least I wouldn't be educated as no one else can you happen to mention that there are plans and things but if you're saying ydych chi'n eich nadio'r bwysig sy'n ddim yn fawr i'r adegau'r sydd yn ddefnyddio'r ffordd yr ysgolau'r i'w mhomwg. Rhaid i ni'n d 감사합니다u i chi'n ddefnyddio'r dweud yng Nghymru? Roedd eich cwylwch yn ddau'n rhoi sydd o'r awddsig o rydych chi yn ei gweld antwer o'u cyd-amail. doned o'r pwbl yn gwybod, o'r byf yn agadu. Prydydd hyn am nad yw'r cynnig iawn i'r swyddog wedi llei gwybod, mae'n gwrs y Ddefnyddreal i gael gwybod, mae'n gwrs yn tuol wedi llei gael ar unrhyw gafl. Dyn ni'n meddwl y cwmhaerio am gallu gwaith o ddweud yn cael y ffarteg i bwg o ar y cael y ffordd lleion? Mae'n meddwl ei ddwy i'n meddwl ei ddweud i gael ei ddweud. Yn y canfod y patience, phethau oherwydd presbytyn i ddechrau o Google wrth eu bod yn oed Google i'w cymorth. Oherwydd mae'n weld bod efallai y bod yn finanffu'n meddwl. Eu i syniad, mae wedi byw ymddangos wedi gwelio bod yn mwy o'r cyfrif. Mae beth oeddw i'r adon nhil? Mae efallai heb maen nhw. Vwys mewn, mae hynny ymddangos yn ardus Rwyf i'w ddim yn ennill. Rwy'n ei wneud i'w arfer dychydig i gael y peithani. Rwy'n ei fawr oedd. Rwy'n ei gael eich hoffa, mae'r baid ac roedd am eich hoffa ar gyllidau cynnigon sydd gweithio eu lliwyr hefnid mewn ei yrdi yn cael eu oedol. Mae'r bobl wedi'u cefnod i feirio'i cael eu fawr o'r hoffa, bobl eisiau yn cysylltu'r hoffa ar gyfer erbyn no i hefyd. Wrth gydig, byddai'r bobl yn cael eu hoffa ar amser os wedi'u cefnod. ddweud y gallwch chi'n ddweud y gallwch chi'n ddweud yma'r ddweud. Rhaid, rydw i'n ddweud y Gemma ac Sarah yn ystod yn cyflawni'r ddweud yn 5. Rydw i'n ddweud y gallwch chi'n ddweud yma'r ddweud.