The evolution of digital media means that when incorrect material is published the publisher has additional means available to minimise the harm caused – namely take it off the website and/or publish a timely update. By extension, a failure to do this adds to the damage caused.
The Times debacle
At the end of last year a 7 year old matter involving the London Times was finally determined by the Queen’s Bench Division of the English High Court. The plaintiff, a policeman, claimed he had been defamed by an article published both in print and also on the website Timesonline. The subheading to the article read “Police are investigating the alleged sale to a security company of intelligence on the Kremlin’s attempts to extradite opponents of President Putin”.
The Times defended the publication on the basis of public interest and justification. The Times also contacted the police Directorate of Professional Standards, forcing the Directorate to conduct its own enquiry. This enquiry exonerated the plaintiff and also concluded that the plaintiff could be identified from the article.
For 2 years after Directorate of Professional Standards exonerated the plaintiff, The Times failed to withdraw or update the article. This is despite the fact The Times, as the instigator of the investigation, was informed of the outcome.
In 2013 the court determined that the article’s meaning was that:
“there were, and… there continued to be, strong grounds to believe that the claimant:
– had abused his position as a police officer… by corruptly accepting £20,000 in bribes… in return for selling… highly confidential Home Office and police intelligence…;
– had thereby committed an appalling breach of duty and betrayal of trust; and
– had thereby also committed a very serious criminal offence”.
The Times abandoned its remaining defence of justification (the court rejected the defence of public interest earlier).
It was now a question of the amount of damages. Apart from damages for the damage to the plaintiff’s reputation, the court awarded a further one-third of the amount as aggravated damages because of The Times’ refusal to act responsibly in that it failed to either take the article down and/or to publish material available to it which in whole, or in part, exculpated the plaintiff.
Undoubtedly the fact that The Times is a newspaper was relevant to this decision as was its appalling behaviour towards the plaintiff; behaviour which included unrelenting dirt digging including seeking information about participation in an IVF program and in relation to his wife’s miscarriage.
Implications for business
Putting that to one side however, what this case did make clear is that publication on the internet is “ongoing”. A printed newspaper once sold, is out of the control of the newspaper and therefore the offending material cannot be “taken down” at least until the next edition. An article on a website has two different characteristics:
- It can be taken down quickly to stop more people reading it (bear in mind that in this case it was agreed that the article was read by 500 people); and
- If it becomes incorrect as more facts emerge – meaning that what was initially defensible can no longer be justified – then there is a responsibility to update or remove the article to prevent further damage.
For your business consider the following:
- Are articles published on your website still up-to-date? Technical papers published by service businesses to assist clients can be overtaken by changes in the relevant practices or law. At that point they can become misleading or deceptive.
- Do you know how to remove an article from your website?
- Do you have an alarm system that prompts your web manager to arrange a review of the currency of each article on a regular basis?
- Be cautious about writing articles based on breaking news; often the facts, the outcome and their relevance prove, on further enquiry, to be markedly different.
- Whilst a good website might be a useful marketing tool, a poorly maintained one is always bad.