Courts cannot assume that online material has been read without some evidence in libel cases, a court has ruled.
The court cannot simply infer from statistics on website visits that certain people have read a particular article, it said.
A former general secretary of rail union ASLEF sued its current general secretary over an account of the union's annual conference which had been published in union magazine Loco Journal. Like all editions of the magazine, it was published online as well as being sent to subscribers.
Formal general secretary Shaun Brady is suing current general secretary Keith Norman, alleging defamation over a paragraph in a news report on a motion discussed at the conference. The report stated that the union's certification officer had ruled against Brady.
Norman claimed that as general secretary of the union he had a duty to communicate the goings on of the conference to union members and interested parties. He said that that communication to members and other interested parties was privileged.
Brady accepted that the communication with members and with some of the interested parties was privileged, but that that was not the case with all the people receiving the magazine.
Part of Brady's claim was that the article had been published online, and so was available to be read by people who had no special interest in ASLEF's workings.
The publishing of material to some of the magazine readers and members of the public through the website meant that the publication could be defamatory, he said.
The High Court has ruled, though, that it cannot just infer that because the material was available to be read online it would have been read by members of the public with no direct connection to the union.
Richard Parkes QC, sitting as a deputy judge of the High Court, made pre-trial findings about what the libel jury trial could hear. He said that there was not enough evidence that anyone without a connection to ASLEF had read the material online to allow that issue to be tried in front of a jury.
"What would [Brady] have been asking the jury to do in the present case, if the matter had been left to them? He would have been inviting them to infer that among the not very substantial numbers of people who have accessed the ASLEF website, and not merely accessed the website as a whole but also proceeded to read the online version of the Loco Journal, there would have been a number who had no legitimate interest in the words complained of," said Parkes.
"There seems to me no basis on which it could safely be inferred that anyone would have [read the material] who lacked a proper interest in reading the article about Mr Brady," said the ruling. "Such people might have done so, and they might not."
The material was published on the ASLEF site where anyone could read it, the court heard. The site received between 649 and 2,179 visits a day during the month of July 2006, the union said.
"Without some evidence to justify the inference … it seems to me to be no more than pure speculation to infer that an 'outsider' would have read the words complained of," said the judgement. "An inference is a conclusion reached on the basis of evidence and reasoning: it is not a matter of guesswork. It would not have been right to ask the jury to take a guess."
"I therefore held that there was no sufficient evidence of website publication to individuals in non-privileged circumstances to leave to the jury," said Clarke.
The Court said that the material could have a defamatory meaning, and that that aspect of the case could go to a trial. It also said that not all of the recipients of the magazine were people whose communication with the union was privileged, so that defamation could have taken place.
Brady had claimed that the 202 non-members of the union who had received the magazine were people whose communication with the union was not protected by privilege, but the Court found that to be true in just 131 of those cases.
The ruling, handed down on 20th October, is consistent with a 2006 decision over articles that falsely suggested a businessman had links with Osama Bin Laden. In Al Amoudi v. Brisard the High Court said that a claimant has the burden of proving that the material in question has been accessed and downloaded.