Legal Research

Are article hyperlinks part of the ?context? in deciding defamation claims?

By scott

Thanks to an PLC update I came across an Interesting defamation case between Islam Expo Ltd a company which organises the bi-annual IslamExpo, and Islamic exhibition and the publisher of spectator and one it’s journalists concerning an article published online at www.spectator.co.uk. The item stated that ” Demos sponsored and participated in a debate at IslamExpo and a seminar on ‘Political Islam’. That’s right: a left of centre think tank worked with a clerical fascist party to organise a conference about its racist, genocidal, theocratic political programme.”

Islam Expo complained that this was defamation and the court was asked to decide on “In their natural and ordinary meaning the words complained of meant and were understood to mean that the Claimant is a fascist party dedicated to genocide which organised IslamExpo, a conference with a racist and genocidal programme”.

Where is becomes interesting ? for me, at least - is the Spectator argued that the statement was not defamatory when read in the proper context of the underlying hyperlinked documentation. In the online article “Demos”, “Harry’s Place points out” (mentioned earlier in the article) “Debate” and “Seminar” all linked to other material.

As the court points out “It is a principle of law most recently defined in Charleston v. Newsgroup Newspapers Limited [1985] 2 AC 65, 70-71, that in order to determine the meaning of words complained of it is necessary to take into account the context in which the words were used and the mode of publication. Thus a claimant cannot select an isolated passage in an article and complain of that alone if other parts of the article throw a different light on that passage.”

So the question becomes, in an online world, does the material found at the end of a hyperlink need to be taken into account when deciding on the issue of context in a defamation case? The Spectator argued they should, Islam Expo that they shouldn’t.

Justice Tugendhat decided would take into account what was in the hyperlinks, but did so “without thereby intending to imply any ruling, one way or the other, as to whether that approach is right in law.” His decision did not actually help the Spectator, whose own lawyer conceded that without reference to the documents the subject of the hyperlinks, the words complained of are capable of being understood as ‘ambiguous.’

He concluded that it was clear the words complained of are capable of referring to Islam Expo, and that a hypothetical reader/person could do so. The case can now proceed to trial.

I think Justice Tugendhat was spot on with his conclusion. The question as to whether linked content should be included, or even considered, as part of the ‘context’ is a much more interesting one. I would probably argue that hyperlinks, in the context of online articles, act in the same way that footnotes and references would in a print publication. Although easier to access this ‘referred’ content online than in print, so more likely to be read, it is still for the individual to read or disregard their existence. So, for me, I can’t see how hyperlinked content can be regarded as context in situations such as this one.

Full post as published by Information Overload on August 04, 2010 (boomark / email).