Kaschke v Gray and Hilton raises questions about how involved a blog owner can be in checking or moderating his or her blog before incurring liability under the E-Commerce Directive.  You can see discussions on the case here and here.

This case revolves around the labour political blog labourhome.org and a post by John Gray claiming that Johanna Kaschke, a local political activist, had been arrested on suspicion of being a member of the Baader-Meinhof terrorist group. Kaschke sued for libel, stating that although she had been arrested, she had never been a member of a gang nor accused of being one, and additionally, that the government of West Germany had paid her compensation for false arrest and imprisonment.

Alex Hilton, the blog’s owner, sought summary judgment dismissal of the claim, which was refused by Master Rose. Justice Stadlen upheld the appeal and in the reasoning provided some guidance to bloggers on the nature and extent of their liability for user-generated content.

The Court clarified that (1) operation of a chat room qualifies as an information society service (ISS) under the Directive thus allowing it to take advantage of the exemptions of liability under Directive, and (2) moderation of one part of a website does not prevent other areas of the same site from being exempt from liability. The latter confirms that if your website includes a mix of user generated content in some parts (exempt) and your own content in other parts (non-exempt), you can still avail yourself of the exemptions under the E-Commerce Directive for the user-generated parts.

However, the decision muddies the waters when it comes to editorial control.  Under Regulation 19 of the E-Commerce Regulations 2002, an ISS whose service consists of the storage of information provided by the recipient of the service is not liable unless it has actual knowledge of the unlawful content or acts expeditiously to remove the content once it becomes aware it is unlawful.  The interesting thing about the Labourhome case is that it raises the question: what is meant by ‘storage’? What activities move it beyond mere storage? In effect, what is editorial control?

Hilton exercised no control over certain automated areas of his homepage, which listed ‘recent blogs’ and ‘recommended blogs’ (automated by users’ votes).  However, sometimes Hilton looked at these posts and considered whether they should be given a more prominent position. If promoted, more detail was provided such as the date and time of the post, and a preview of the post. This, according to Justice Stadlen means that Hilton might not be able to use the exemption under Regulation 19 for hosts, because it might be more than mere storage. Even the fixing of spelling mistakes risks losing the protection of Regulation 19. Justice Stadlen reasoned that the act of fixing a spelling mistake goes beyond mere storage of information adding:

“The fact that Mr Hilton on a few occasions removed blog posts on grounds of bad language, political provocation or offensiveness falling short of defamation again in my view makes it at least arguable that the service provided in respect of those individual blog posts and also in respect of the general service consisting of making available webpages on his website for such blogs to be posted consisted of more than mere storage.”

Although Hilton is required under the Regulations to remove illegal content once notified, and has similar indirect liability under the Defamation Act, it raises a few issues of concern.

Hilton moderated comments after they were postedfor offensiveness. The risk, Hilton argued, of finding him liable would be to discourage any monitoring of blog’s by the owners for offensive material.  Hilton’s lawyers argued that pre-moderation of content should fall foul of Regulation 19’s exemption, but not post-moderation of content. The Judge side-stepped the argument saying, “The question whether the removal by a service provider of a blog on grounds of offensiveness or political content is in itself enough to prevent his storage of that blog post from consisting only of storage and thus sufficient to withhold Regulation 19 immunity is not one which it is necessary to decide”.

This is unfortunate, because this seems to be exactly what the case was about. Granted this was a summary judgment proceeding, and Justice Stadlen emphasised that the extent of Hilton’s involvement was a question for trial. That said, the case has significant regulatory implications that the judge seemed to overlook.

1. The exemptions in the Regulations (via the E-Commerce Directive) were crafted in order to encourage ISPs and the like to self-regulate.  This case has the opposite effect: it encourages blog owners to purposefully avoid ANY moderating, because otherwise it risks liability.

2. It creates uncertainty about what qualifies as editorial involvement:

  • If the correction of spelling mistakes is editorial involvement, what about the removal of comment spam, which I know I remove from my comments.
  • Many comments sections are set up so that comments by someone only need to be approved for the first one, and any future comments are unmoderated. Does the approval of one comment hold an ISS liable for any future, unmoderated comments by this person?
  • This case indicates that any moderation for offensiveness opens the ISS up to liability – what about as in this case where some comments are moderated and others are not?

The other side is the risk of an ISS going ‘Steve Jobs’ and with the exemption of liability and encouragement of self-regulation, remove content, or in Jobs case, applications, as it sees fit without a proper accountability regime in place. Jobs most recent move was to refuse a request by a Pulitzer-prize winning satirist for an iphone app on the basis that in making fun of public figures, the satirist violated Apple’s Terms of Service. Apple has since backed down on this decision. See the article here.  While this deserves a separate blog post, it is mentioned here, because the answer to a case like Labourhome is not to simply take the American approach and exempt an ISS from any liability because it results in an accountability deficiency as seen with Apple.  Moderation for offensiveness can be a good thing, but without structures of fairness, transparency and accountability, there is the risk of moderators ‘going Apple’. However, the effect in the Labourhome case creates a problem at the other end of the scale: owners of blogs and chatrooms effectively cannot and should not moderate their space for any offensiveness. The losers in this scenario are the public – their iphones are tethered and their moderators fearful. Surely we deserved something more nuanced.