The general principles that apply to the publication of statements also apply to information on the internet.  However there are specific considerations and legal provisions that apply to the internet which do not apply generally.

The issue of liability for defamation is the most significant issue for organisations hosting blogs and chatrooms but there are also other issues that should be considered.  Aside from the reasons for moderating these pages discussed below we would particularly recommend that not-for-profit organisations consider the role a moderator should have in order to protect the organisation’s reputation.  In chatrooms there is always the concern that paedophiles may be grooming children or material may be the subject of other criminal investigations.  The hosting organisation’s reputation could be at risk if the material appearing is illegal or inconsistent with its objects.  Charities will in any case need to determine that the hosting activity falls within its charitable objects and providing the services is within its powers.

The law of defamation prohibits defamatory statements being made and defendants may include the original author, a person publishing or editing the statement.  Libel is making defamatory statements in writing.  In principle therefore whoever hosts a webpage will be liable for any defamatory statement and will be considered to have published the statement.

The key issue then is the extent to which there are exceptions that apply.

Exceptions to liability

Electronic Commerce (EC Directive) Regulations 2002 (“Regulations”) limit the liability of ISPs in situations where:

• they act as a mere conduit; and
• they hold the information only in temporary storage to make onward transmission of the information more efficient; and
• they have no prior knowledge that the information is illegal and that as soon as they are informed that it is, they remove it quickly.

It is unlikely that this exception will apply unless the nature of the hosting service is more like that of an ISP.

Section 1 of the Defamation Act 1996

There are complicated provisions arising as to whether a defence under Section 1 of the Defamation Act 1996 applies.

Broadly speaking, the greater the signalled intention to control the content of the chatroom or blog, the greater the risk the organisation may be held liable for defamatory content.

Our recommendation for these reasons is that all chatrooms and blogs for which the organisation can be held responsible are moderated effectively.  There should be an ability for users to complain about material and an effective procedure for considering complaints and removing promptly the offending material.  There need to be moderator guidelines to ensure that the complaints appear to have a genuine basis.

We would advise drafting terms and conditions of use to establish the intention of the hosted facilities and the organisation’s responsible approach to its users.

Do

• Provide the user with visible information about how to keep safe on the chat room or other services provided by you.
• Have clear rules about behaviour and content.
• Do have a moderator for chat rooms who may be turned to if a user needs help. Moderators should be carefully chosen as they are in position of trust over users.
• Have instructions for users to notify the webmaster or moderator in case of breaches of the rules. Details of the webmaster or moderator should be easily accessible.
• Do deal with notifications received regarding material being defamatory or offensive. Remove the relevant material from the site pending further investigation. Material may be restored to the site if, on investigation, it turns out that the allegations are untrue.
• Put block or ignore buttons in place for users. Make these easy to use (so users can stop seeing messages from a particular person if they want).
• Inform bloggers that appropriate permission is required when using any material which is not their own original work, such as quotes or extracts from publications.
• Always have a disclaimer on your website disclaiming responsibility for the contents. Examples of what could be said are:  We are not the source of the information, and therefore cannot guarantee the accuracy of the information, which may be incomplete or condensed. The information service is not responsible for any damages with respect to the accuracy or use of the information.
• Have a privacy statement showing your commitment to protecting the privacy of your users. Also state that the information gathered from users is confidential and if used state the purposes.
  If providing links to other websites state that the links have been carefully chosen but you do not have any control over their contents.

Don’t

• Do not take an active role in monitoring your chat rooms. It is safer not to monitor them as long as there is a clear notice disclaiming the contents and clearly stating the rules.
• Users should not give out their passwords for both chat rooms and blogs. Encourage users not to provide personal information of any kind. This is of particular importance when the target users are children.
• Do not delay dealing with complaints. They should be dealt with promptly so as to get the message across that you are strict about certain issues. This will also be helpful in avoiding future occurrences of a similar nature.
• Inform users not to leave blog Web pages open or computers unattended. There is always a chance that someone could write something on a blog with the username.
• Do not allow contributions made in languages other than English.

Bates Wells & Braithwaite is a commercial law firm based in the City of London with particular expertise in advising Charities and Social Enterprises in all aspects of their operation.  If you would like further information see www.bateswells.co.uk or contact Sean Egan on s.egan@bateswells.co.uk.

This information is provided on a no liability basis.  Specific advice should be taken for specific situations.

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