Gggollum Sues Tolkien for Cyber Libel

Mr Justice Eady said he did not see how someone could be libelled on their own website if they had the power to remove comments – and that leaving them up, as Mr Carrie did, was tantamount to agreeing to the comments being published. He said there was no law that said something being on the internet counted as the ``substantial publication'' needed to base a libel case on, adding: ``It will not suffice merely to plead that the posting has been accessed by a large but unquantifiable number of readers'.''

The case is of some significance for those of us who blog under the oppressive shadow of UK libel law; blogger Dave Ostler is currently being sued in part because of comments left on his blog by someone else. The need for ``substantial publication'' was established in a 2005 case involving a newspaper story which had been seen by no more than five people in the UK. It's still not clear, though, exactly what the benchmark for ``substantial publication'' is, but Eady's comments would suggest that it is up to the plaintiff to demonstrate that it has occured. That's tricky for comments on most blogs: accessing the front page of a blog won't bring up the comments, and on many blogs comments appear in a separate box which only opens when you click on a link. Hit rankings for these boxes are usually unavailable.

Even if a comment is accessed, it may be ``buried'' among many other comments so that it is unlikely anyone noticed it. It seems to me that unless a comment becomes the focus for a debate among a large number subsequent commentators, or provokes discussion on other websites, or somehow appears in Google rankings, surely it cannot reasonably be proven to have been ``substantially'' published?

The other interesting feature of Eady's judgement concerns the consequences of allowing a libel about yourself to remain in the public domain when you had the power to remove it. At the moment, every day that something appears on the internet is seen as a ``republication''. So, if you posted something libellous five years ago and it remains online you can still be liable. That's reasonable enough in itself - if you happen to discover something libellous about yourself online, you shouldn't be barred from any recourse to the law just because you were not aware of it until sometime after it first appeared. However, Tim Ireland has warned that this could also be used for ``libel ambush'':

As it stands, any UK newspaper or magazine wishing to make an archive of their articles available online must be prepared to prove all over again that what they published umpteen years ago was true. Even archive services such as LexisNexis are vulnerable (as one inventive and secretive 'blogger' has shown). Also, someone could choose to initially ignore something you published about them on your website or weblog and then surprise you with a claim of libel in 5, 10 or 20 years time; that's a long time to expect anyone to maintain evidence and/or contact with relevant witnesses. There are already quite a few bloggers with content of this vintage. Very few of them will be aware how (and when) it might be used against them with an ambush claim. That's a very real danger - but it seems to me that if you discover a supposed libel but decide not to act for strategic reasons (waiting until evidence of justification disappears, or until the author becomes richer and therefore a more attractive target), then you are in effect ``agreeing to the comments being published'' - and once you've agreed you can't change your mind.

Proving that the libel was known about but not acted against may be difficult, though. Also, it is reasonable to assume that if you receive a complaint about certain details in a blog entry, then the complainant acquieces to the publication of all the other details on the same page. It should not be allowed for the complainant to make further demands about the same material at a later date, which may happen if the complainant is encouraged by initial compliance.