Beware of the link? English High Court raises possibility of liability for linking to defamatory material

A recent English High Court decision in McGrath and another v Dawkins and others [2012] EWHC B3 (QB) (you can read the decision herehas indicated that a person who links to a webpage containing defamatory material could themselves be liable for defamation.  The case is particular to its facts but it serves as a reminder of the need to be cautious when linking to material online and to be aware of what the link actually contains. 

The facts

The action was raised by Mr McGrath on behalf of himself and his company MCG.  They sued Professor Richard Dawkins, The Richard Dawkins Foundation, the online retailer Amazon and Mr Jones for comments made by Mr Jones on various online fora, relating to Mr McGrath’s book “The Attempted Murder of God: Hidden Science You Really Need To Know”.   It is fair to say that the ‘religion versus science’ debate got very heated and the exchange of comments became very personal.

The case against Amazon

In respect of the case against Amazon, the judge, HHJ Moloney QC, found that as Mr McGrath had not used Amazon’s standard online complaint system to notifiy it of the alleged defamatory material, Amazon could not be deemed to have actual knowledge of the comments in terms of Regulation 19 of the E-Commerce Regulations 2002.  Therefore the claim against Amazon was struck out. 

Liability for linking?

However, what emerged as one of the main issues in the case was whether The Richard Dawkins Foundation was liable for providing a link to the alleged defamatory comments which were posted on the website www.richarddawkins.net.  That website was operated by a separate US company which was not a party to the action.  However, The Richard Dawkins Foundation operated the website www.richarddawkinsfoundation.org in the UK and it provided a link to the comments on the .net website.  HHJ Moloney QC held that “the two websites are very closely associated [and] the link is hidden”.  In addition, he found that when a party clicked on the “Home” button of the .org site, it resolved to the index of the forum on the .net site without the user being given any indication that he was being directed away from the original website.

Ultimately it was a matter of fact whether the .org website could be responsible and liable for content on the .net website.  However, the judge said that he was not prepared at this early stage in proceedings to strike out Mr McGrath’s claim until further evidence is heard. 

Comment 

Whilst this case is very ‘fact specific’ and no decision has yet been made, it is a sobering reminder to be wary of linking to the content of third parties on the internet.  This case is particularly relevant against the background of Attorney General Dominic Grieve’s comments today that social media users should be more aware of how easy it is to break the law by posting comments online.

Mark Cruickshank

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