One of the many legal risks facing you as a web publisher comes from the law of libel: as publisher, you may be liable not only for your own writings, but also for the defamatory comments that users make on your website.
Identifying defamatory posts
How can you identify whether a particular post is defamatory or not?
Over the years the courts have put forward a lot of different tests. A defamatory publication has been defined as: a publication “lowering the plaintiff in the estimation of right-thinking people generally” (Sim v Stretch); “a publication, without justification or lawful excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule.” (Cropp v. Tilney); a publication tending to make a person be “shunned and avoided” (Youssoupoff v. MGM Pictures). A wide range of publications may be defamatory – for example, allegations that a person is a thief or a liar, an idiot or fool, corrupt, immoral, an adulterer, carrying a disease, bankrupt or unable to pay his or her debts.
So, any comment on your website that may have a negative effect on a person’s reputation (other than a trivial effect) could be problematic.
Of course, there are range of defences which may be available to web publishers in respect of third party defamatory comments.
Probably the most important defence is justification (aka truth). If a defendant can prove that a publication is true, then the defendant will have a complete defence to a libel action. However, it can be difficult, not to mention expensive, to prove the truth of an allegation. As a web publisher, then, you should be wary of relying upon a justification defence.
The defence of “fair comment” is closely related to justification. This defence may be available where the offending statement is a statement of comment rather than fact, is based upon facts which can be proven to be true, and is made in good faith, without malice, on a matter of public interest. Again, a web publisher will often be in a poor position to assess the applicability of a fair comment defence in relation to a statement made by a website user.
In addition there is a special public interest defence (sometimes called Reynolds-style privilege) which could in principle be applicable. However, the scope of this defence is uncertain, and it is not entirely clear how it may apply to website forum or blog comments. In summary, a web publisher should only rely upon one of the standard defences to a libel action where the applicability of the defence is clear (e.g. in the case of an allegation of criminal behaviour, a conviction has been obtained).
As well as the standard libel defences, there are special defences under the Ecommerce Directive and the Defamation Act 1996 which may protect web publishers. I will focus here upon the latter defence.
Of course, some user comments are more risky than others. E.g. a statement on your widely-read political blog that an litigious MP has takes bribes is more risky, by far, than a statement on a blog read only by your friends that your ex is ugly. The internet would be a smaller place, in more ways than one, if all formally defamatory material was suddenly deleted.