Online Publication Claims: an Introduction – Guy Vassall-Adams QC and Hugh Tomlinson QC

20 10 2017

The Internet has brought about a global communications revolution. An individual who wishes to communicate with others no longer needs a printing press or a broadcasting operation. Instead information can be communicated worldwide with a few keystrokes. Words, sounds, pictures or videos can, potentially, be communicated to the nearly 48% of the world’s population – 3.2 billion people – who are now estimated to use the internet (see ITU figures).

Internet Live Stats, estimates that every second, there are at least 7,000 Tweets sent, 1,140 Tumblr posts posted online, 733 photos posted on Instagram, 2,207 Skype calls, 55,364 Google searches, 127, 354 YouTube videos viewed, and over 2 million emails sent. Gary Hayes’ “Social Media Counter” gives daily, weekly, monthly and annual figures.

Within the space of 20 years, the internet has transformed the way in which people work, socialise, shop, seek entertainment and share information and ideas. In the traditional vertical model of publishing, publishers such as media organisations created their own content and sold their products to the consuming public. In the world of the internet, everyone can be a publisher, setting up their own blogs, or discussion groups, or posting their comments, photographs or videos online. Media law is only beginning to explore these significant developments, which raise many novel issues.

The internet is the realm of free communication, permitting individuals to express their own thoughts and opinions and to publish facts which traditional publishers do not know about or do not want to publish. This freedom is of enormous value; it is no exaggeration to say that the internet rivals the printing press as the greatest vehicle for free expression ever invented.

But with freedom comes the risk of abuse. The traditional media is heavily constrained in what it publishes by the civil law. Media corporations employ in house lawyers and are held to account for what they publish by regulators or in the Courts. In contrast, those who publish on blogs or social media may not be aware of legal constraints or, if they are, may choose to ignore them. In addition, the great internet corporations which have made billions from the Internet are, understandably, fierce defenders of the speech rights of users.

There are two particular areas where the new communication world of the internet can seriously interfere with the legal rights of individuals or corporations.

First, there is the right to reputation. The law of defamation is a powerful incentive to newspapers and broadcasters to check their facts and proceed in accordance with what the European Court of Human Rights calls “the ethics of journalism”: checking facts, obtaining comment from the subject of articles and so on. Media corporations know that if they break the law in this regard they are liable to legal action and may have to pay substantial damages and costs. Of course, the incentive does not always work but every professional journalist knows the risks of publishing false and defamatory allegations.

The position can be very different for the vast majority of internet users who are not professional or even amateur journalists and know little or nothing of the law. The overwhelming majority of internet publications are not by professional journalists and are not subject to any legal checks. This means that the internet is a powerful vehicle for defamatory expression. The internet also offers many opportunities for publishing anonymously, which make it much harder for the victim to hold the publisher to account.

A second threat to legal rights resulting from online publication is to the privacy of individuals. The internet presents a considerable challenge to those who wish to prevent the publication of their private information by the media. As is illustrated by the high profile case of PJS v News Group even if an individual receives advance notice of a threatened publication of private information and obtains an injunction, social media “leaks”, or publication outside the jurisdiction can lead to its widespread dissemination.

The online circulation of “intimate photographs” or “sex tapes” – often called “revenge porn” – has given rise to considerable litigation and has attracted criminal legislation in this and many other jurisdictions.  But this is only the tip of the iceberg. A huge volume of private information is now published every day on social media, much of it by individuals who believe they are communicating to a small group of friends and associates whereas, in fact, they are making their information potentially available to the whole world. Social media sites can be “misused as a medium through which to threaten, abuse, harass, intimidate and defame” (AB v Facebook Ireland [2013] NIQB 14 [13]).

The Internet brings another new and important feature to publication. Traditional media publication was ephemeral. In the well-known phrase, “today’s news is tomorrow’s fish and chip papers”. Old newspapers were only available in difficult to access library archives, while old broadcasts were not accessible after they had been made. Everything has changed with the internet. Newspapers now have “online archives” – some going back many decades. Postings on websites or social media may continue to be available for many years. There are web resources which enable old internet pages to be consulted – for example the Wayback Machine archives more than 299 billion web pages.

Search engines mean that old posts or articles can be accessed many years after they were first published. A link that appears on the first page of a Google Search against a person’s name is a constant point of reference for all those who meet or deal with that person. This means that, in contrast to traditional media publications, it is not safe simply to ignore false or private material published online.  It is likely to remain available for many years into the future.

In order to provide a guide for legal practitioners advising or assisting in bringing or defending “media law” civil claims arising out of online publication we have brought together a team of authors from Matrix Chambers and Digitalis to produce a new book, Online Publication Claims: A Practical Guide. The aim of the book is to provide a “road map” for this important and expanding area of law.  It will be published on 9 November 2017.

Guy Vassall-Adams QC and Hugh Tomlinson QC are members of Matrix Chambers and the editors of Online Publication Claims: a Practical Guide. This is an edited extract from their Introduction to the book. Over the next few weeks Inforrm will be publishing further extracts.


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20 10 2017

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