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Should sites be held liable for user comments?

ConsumerNews
, 15 Oct 2010News

Britain's Attorney General has said that website owners should be made legally responsible for comments made by visitors.

According to a report on Out-law.com, Dominic Grieve (pictured) told members of the Criminal Bar Association that the spiralling number of internet news web sites meant it was becoming more and more difficult for courts to ensure that trials were fair, and that juries were not exposed to material that could prejudice a hearing.

"The rise of [the Internet] has been profound in so many aspects of our lives, including the relationship between the Courts and the media," Grieve told the assembled audience of lawyers. "The news is constantly available and updated either on 24-hour television networks, the websites of mainstream news organisations, or unofficial blogs, emails and social networking sites. The amount of material is vast and it can be passed on at lightning speed.

"In my view this does not reduce the importance of the contempt of court laws. It doesn't remove the need for fair and accurate contemporaneous reports," the Tory MP said.

Turning his attention to comments posted by members of the public, Grieve explained:

"If it is increasingly easy for individuals to act as unofficial journalists and publishers the greater the need for general understanding about why restrictions are sometimes necessary. This extends particularly to those who run websites upon which members of the public place their opinions.

"I understand that there is no clear authority in relation to their legal obligation but there must, I feel, be an argument that they too have to ensure that a trial is not prejudiced by what is posted," said Grieve. "I would be happy to have further discussions with such organisations... with a view to increasing their understanding of those potential risks."

Until now, printers and distributors have been able to argue that they had innocently passed on prejudicial material - a defence that could be used by web site publishers to disclaim responsibility for prejudicial comments, argues technology lawyer Struan Robertson of legal firm Pinsent Masons.

"Site operators could use the 'innocent distribution' defence, claiming that they did not know that material was sub judice," says Robertson. "This defence is not available once they have been told about the material, though."

"Online publishers that remove that material quickly would also be able to claim a defence under the E-Commerce Regulations that absolve publishers of responsibility for unlawful material as long as they remove it quickly when told about it," said Robertson.

Grieve's comments suggest he is considering a change in the law to make site publishers responsible for material posted by users, and come after a string of high-profile cases in which courts held that they were powerless to tackle the publishing of prejudicial material.

Extensive coverage of a paternity case in the High Court last year led to the judge ruling that an extension of reporting restrictions was "futile". In another judgment, a court ruled that reporting restrictions only replied to those people who were aware of them - leaving open the question of whether amateur commentators such as bloggers may be able to evade restrictions that bound more professional news outlets.

What do you think? Let us know your (preferably legal) views in the comments below.

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