"Mumsnet" case shows problems with forum liability for member comments

The Telegraph reports:

The controversial childcare expert Gina Ford today dropped her threat to sue the parenting website Mumsnet after a year-long dispute was settled out of court.

Lawyers for Ms Ford, author of The Contented Little Baby Book, agreed to halt legal action after the popular website agreed to pay a contribution of her costs and prevent “personal attacks” on the site.

The agreement brings to an end a bitter dispute that began more than a year ago.

Some of Mumsnets’ 60,000 members used messageboards to attack Miss Ford’s famously rigorous childcare methods.

A sarcastic comment last August accused her of “strapping babies to rockets and firing them in to south Lebanon”.

Ms Ford, 52, a strong advocate of routine, said the remarks amounted to “serious and offensive libel” and caused her huge distress.

She began legal proceedings against the site, which receives up to 15,000 internet posts a day.

Justine Roberts, the founder of Mumsnet, in turn accused Miss Ford of conducting a “menacing” campaign to stifle negative comment, which Ms Ford strongly denied.

But after a series of legal letters and an eight-week mediation period, both parties announced today that the dispute had been settled.

The exact terms of the agreement are confidential, but it is understood that Mumsnet has apologised and made a contribution to Gina Ford’s substantial legal costs to protect its individual members from legal action.

It has also agreed to abide by its own “personal abuse” policy, preventing members from making unnecessary attacks on individuals. The ban on discussing Miss Ford’s methods has also been lifted.

Cases such as this highlight the draconian nature of English (and Irish!) libel laws, which in effect require bulletin boards and other social sites to police the actions of their users or risk being crippled by the costs (let alone the damages) of a libel action. This is difficult enough on a low-traffic site, let alone one which receives 15,000 posts a day. Quite apart from the chilling effect on freedom of expression, this also presents a competitiveness problem - why set up operations in Dublin or London when you can avail of a much more publisher friendly jurisdiction in the United States?

[Update] The Mumsnet site has now put up its own perspective on these issues:

Like many other website publishers, we have long maintained that libel law has not caught up with the digital age with the result that freedom of expression is being unacceptably curtailed. Now that we have settled our long running dispute with Gina Ford, we intend to campaign energetically for a review of how libel legislation applies to the internet.

Put crudely, the current legal situation is the rough equivalent of trying to use a set of railway signals to control the air traffic over Heathrow – the principles may be fine but different forms of communication, just like different forms of transport, require a different approach. Currently the law regards a bulletin board just as it does a newspaper or a book.

In fact the Law Commission, the body which advises the government on legislation, recognized this problem in 2002, warning that a rethink of defamation law was needed to protect freedom of speech online. At the time Hugh Beale QC, one of the law commissioners, warned: "When a website carries material to which someone objects - rightly or wrongly - it is often easier to complain to the ISP than to the author. The problem is that the law puts ISPs under pressure to remove sites as soon as they are told that the material on them may be defamatory. There is a possible conflict between the pressure to remove material, even if true, and the emphasis placed on freedom of expression by the European Convention of Human Rights."

Since then, however, no changes have been made to the law governing defamation on the internet and we believe website publishers running bulletin boards now find themselves in a similar position to that described by Mr Beale. Faced with any complaint about a bulletin board posting, website publishers, frequently small businesses or individuals with limited resources, find themselves with little choice but to remove the posting, with obvious consequences for freedom of speech.

Mumsnet has this week written to the Department of Constitutional Affairs urging the government to reconsider this area in its forthcoming consultation on defamation.

In particular we have asked to government to address these points:

1. Does holding websites liable for postings by users on their bulletin boards have the effect of unacceptably curtailing freedom of expression?
2. Is a website which swiftly removes material following a complaint protected from liability for the posting? And how swift is swift?
3. Should the different nature of bulletin board communication be taken into account in assessing whether a complainant has been defamed? For instance if a single poster makes a defamatory comment but is immediately rebutted by a large number of users should the resulting thread be considered as defamatory? Or should there be a requirement to consider bulletin board conversations in the whole?

We would stress that we accept that individuals have a right to protect their reputations. However this right always has to be balanced against the rights of others to freedom of expression. At present we believe that this balance is not struck in the right place.

The E-Commerce Directive was intended to make online business easier by removing some of these liability fears. Unfortunately, it was drafted narrowly to apply to mere conduits (telecommunications providers), caching and hosting only. This appears to leave other online intermediaries (such as search engines, bulletin boards and content aggregators) out in the cold, unless they can bring themselves within the hosting defence. Might a bulletin board be able to rely on the hosting defence in respect of user posts? I have been unable to track down any discussion of this precise issue, but Lillian Edwards analyses a related issue in respect of eBay liability for user advertisements here.