High Court defends freedom of expression for news websites

12 April 2010 by

SAMUEL KINGSFORD BUDU v THE BRITISH BROADCASTING CORPORATION [2010] EWHC 616 (QB), 23 March 2010

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A claim for libel in respect of three articles in a news website’s archive has been struck out in the Hight Court by Mrs Justice Sharp. When read in context, the articles were incapable of bearing the alleged defamatory meaning, the publisher had attached Loutchansky notices to them, and it would be a disproportionate interference with the publisher’s rights under ECHR Article 10 to allow the claim to proceed where it had been brought after four years had passed since the publication of the articles.

Summary

The Claimant brought proceedings in respect of three archived articles published by the BBC in mid 2004. They related to the decision of Cambridgeshire Constabulary to withdraw an oral job offer made to the Claimant after subsequently investigating the legality of his immigration status. Within weeks of first being published, the articles became accessible only in the archive, via search engines. The action related to the articles in the archive and the related Google snippets.

The first article did not name the Claimant while the later two articles did, but also contained details of the Claimant’s assertion that he was present legally in the UK. The first article could not be accessed by a search for the Claimant’s name, but only through links provided on the pages displaying the second and third articles.

Mrs Justice Sharp struck out the claim.

The second and third articles did not have the defamatory meaning alleged by the Claimant:

“at worst, the articles when read together are capable of meaning there were in 2004 unresolved questions about the Claimant’s immigration status, which he may not have fully disclosed to the police” (paragraph 52),

“[i]t is quite clear from the articles that the suggestion is not that the Claimant is or may be a security risk at all; but that security vetting revealed issues as to his immigration status including his right to work, which is a wholly different matter” (paragraph 56).

As the second article was not defamatory, it followed that the BBC could not be liable, even arguably, for its republication on Google:

…it would not be appropriate or just in my view to make the publisher of the original webpage responsible in law for a snippet which makes a defamatory allegation (for example, because it detaches certain words from their context) not made in the original webpage itself” (paragraph 77).

The first article, if read alone, could not be understood as referring to the Claimant. It had, therefore, to be read through the prism of the second and/or third article. When the articles were read together, the first article was not capable of bearing the defamatory meaning alleged by the Claimant. The Claimant had not disclosed to the Constabulary that there were at least question marks over his immigration status when he applied for the job. As a consequence, the residual defamatory meaning which the first article was capable of bearing was unquestionably true.

Where it was known that archive material was or might be defamatory, the attachment of an appropriate notice warning against treating it as the truth would normally remove any sting from the material, following the Court of Appeal decision in Loutchansky v Times Newspapers [2001] EWCA Civ 1805. The BBC had adopted that course by attaching a notice to the articles.

“The court is entitled to have regard to the practical problems facing defendants who have to face the sort of detailed inquiries into the responsibility of their conduct many years ago which such a defence [qualified privilege] entails” (paragraph 111).

Mrs Justice Sharp commented that

“Generally, it is a disproportionate interference with a party’s [ECHR] article 10 rights to bring a claim for libel after a significant period of time has elapsed. In my judgment, the potential prejudice to a defendant in advancing a defence is a relevant factor to be weighed against permitting a claim in respect of archived internet material to proceed, many years after the date of the original publication” (paragraph 118).

A balance between the potentially competing rights under articles 6, 8 and 10 must be struck. In this case the BBC no longer retained much of the material which it had used to produce the articles, causing it to suffer significant prejudice if the case proceeded to trial, while the Claimant’s case was speculative in nature.

In those circumstances, permitting the action to continue would constitute a disproportionate interference with the BBC’s rights and would be an abuse of process.

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