Karim v Newsquest Media Group Ltd

A report of legal proceedings attracts absolute privilege under Defamation Act 1996, section 14 where it is substantially fair, accurate and contemporaneous. Proceedings before the Law Society Disciplinary Tribunal fall within the concept of legal proceedings for this purpose. A website operator may also rely on regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 for user-generated material stored on its service where it lacks the required knowledge or awareness, removes the material expeditiously after receiving notice, and the contributor is not acting under its authority or control. Summary judgment is appropriate where there is no realistic prospect of success.

The claimant brought a libel action concerning an online article reporting disciplinary proceedings before the Law Society Disciplinary Tribunal and comments posted by users on the defendant’s websites. The defendant sought strike-out or summary judgment under CPR 3.4 and rule 24.2.

The defendant relied on absolute privilege for the article, alleging that it was a fair, accurate and contemporaneous report of legal proceedings. For the user comments, it relied principally on regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002. The central issues were whether the article satisfied the statutory privilege and whether the defendant established the statutory protection for the stored user comments.

1. Article. The publication was absolutely privileged under section 14 of the Defamation Act 1996. Proceedings before the Law Society Disciplinary Tribunal were sufficiently legal in character for this purpose, following Addis v Crocker [1961] 1 QB 11. The report was substantially fair and accurate and was published contemporaneously. Substantial accuracy was sufficient; the omission of the claimant’s earlier explanation did not materially affect the accuracy of the report. The approach was consistent with Kimber v Press Association [1893] 1 QB 65.
2. User comments. Regulation 19 applied to the stored comments. The defendant had no actual knowledge, and no awareness of facts or circumstances making unlawfulness apparent, until the complaint was made. It then removed the article and comments promptly. The contributors were not acting under the defendant’s authority or control.
3. Regulation 19 concerns damages and other pecuniary remedies and might not answer a claim for an injunction. That issue was theoretical here because there was no threat of repeated publication.
4. Disposition. Applying the summary-judgment test identified in Alexander v the Arts Council of Wales [2001] 1 WLR 1840, there was no realistic prospect of success on either claim. The application was granted.

Not stated in the judgment.