Welcome > Blog > Blog Posts > 3 Key Legal Considerations for Online Publishers: Copyright/Plagiarism, Defamation and Misrepresentation
15th July, 2016
As Cavendish Enterprise trials the services of an interactive platform hosted by JournoLink which supports our Start & Grow clients in the management of their own PR and gives them access to journalists, broadcasters and bloggers, we’ve asked LawyerFair to highlight some of the legal issues around publishing content online.
This article will briefly discuss three key legal considerations which apply to the publication of material online. Firstly, the issue of copyright/plagiarism, secondly, the laws applying to defamation on the internet, and lastly, laws relating to misrepresentation online. Note, this general overview is not legal advice, and is provided for information purposes only.
Breach of copyright is a common issue which applies to material posted online, and can present significant risks for an online publisher. Broadly, copyright infringement relates to the unauthorised replication of a substantial part of another person’s work. Copyright infringement can relate to any form of artistic or multimedia work, including written materials, images, video, and sound recordings. Software code itself is also considered an artistic work and is therefore subject to copyright. Copyright arises automatically without registration, although it can be useful to provide a copyright notice in the format of © [Year], [Owner name] in order to assert your ownership.
As noted above, the test for copyright infringement is whether a substantial part of the work is taken, without a licence. Primary copyright infringement only requires actual copying, but secondary copyright infringement (i.e. dealing with or hosting copyrighted works) requires knowledge. The definition of “substantial” is a question of quality not quantity. Therefore, it is possible to infringe copyright even if a small part of a work is copied, if that part represents the “essence” of the work that may have required considerable labour, skill or judgment to create. Conversely, if a copyright work lacks originality (such as a contractual agreement using standard terms), it is more difficult to establish that copyright has been infringed.
Plagiarism could be considered as related to copyright infringement, but is more relevant in an academic context. Broadly, plagiarism is the passing off of some else’s ideas as one’s own. It may not involve copyright infringement at all, as there is no copyright in ideas, rather, copyright only attaches to the expression of ideas on a particular medium. For example, it is difficult to allege copyright infringement for stealing the “plot” of a novel (although creating an unauthorised “derivative work” is copyright infringement, such as where a novel is converted into a film). However, taking ideas without attribution could breach an academic plagiarism policy. On the other hand, if someone copies written work verbatim (rather than the idea) this would be considered copyright infringement.
A common misconception is that copyright is not infringed as long as appropriate acknowledgement of the source or a citation is provided, however, this is not the case. Quoting material in an academic or journalistic context can confuse the issue, for example a research paper can cite another paper and may reproduce sections of that paper, provided that there is an appropriate citation. The reason is not because this would not be considered copyright infringement, but due to defenses to copyright infringement, such as fair dealing and use for the purpose of criticism, reporting of public affairs, or research. It is important to note that such defences vary by jurisdiction, for example, fair dealing is called “fair use” in the USA is much broader than fair use in the UK, which is limited to a few narrow categories. Therefore, it is not wise to rely on fair use as a defence to copyright infringement.
The safest option for a publisher of online content who is wary of copyright infringement is to ensure that they have a licence to copy other materials (especially images, which can be obtained royalty-free) and to ensure that their materials are not being copied, except as permitted. For example, authors may wish to consider using a creative commons licence e.g. use with attribution (CC BY 4.0), non-commercial use (CC BY NC 4.0).
The main risk that copyright infringement presents to a publisher of online material is not necessarily the risk of litigation (which could be significant, particularly in the USA, where “statutory damages” are available for each instance of infringement or website “hit”). Rather, the main risk is that the website is taken down. In the UK, a web host can be liable for copyright infringement if they do not remove the offending material “expeditiously” if they have “actual knowledge” of infringement (see Reg 19 of the Electronic Commerce (EC Directive) Regulations 2002). If a website is hosted in the USA, it is possible to issue a DMCA takedown notice, which can force the host to remove the offending website. It is also possible to inform search engines of the copyright infringement (e.g. Google, Yahoo, Bing etc) which will lower the search engine rankings of the website.
The laws regarding defamation online are complex and also vary by jurisdiction. In the UK, the main laws involved are the Defamation Act 1996 and 2013, the Defamation (Operators of Websites) Regulations 2013, and the Electronic Commerce (EC Directive) Regulations 2002.
Defamation is divided into two aspects, libel, which is defamation on some permanent medium (e.g. writing or posting on a website) and slander, which is more temporary, such as speech, or posting on a chat or bulletin board. The legal test for defamation requires that the statement tends to lower the claimant in the estimation of right-thinking members of society generally and must have caused or be likely to cause serious harm to the reputation of the claimant (e.g. allegations that they have broken the law).
There are exemptions and exceptions, such as truth, honest opinion, public interest, and privilege (e.g. solicitor-client, judicial or parliamentary). If a publisher exerts some control over content then could be deemed a primary publisher, otherwise they could also be a secondary publisher if they passively made the content available to others. It is difficult to determine in advance what level of involvement may incur liability. For example, providing a hyperlink to defamatory article could be deemed defamation as a primary infringer, but is not clear whether linking to the home website would also incur liability.
There is a one year limitation period to bring actions of defamation (see s 4(a), Limitation Act 1980). However, the Courts have a broad discretion to extend this limitation period if they deem it equitable. This limitation period runs from the date of publication, and in the online context, each new “hit” on a website constitutes a fresh publication. However, there is a “single publication rule” under s 8 of the Defamation Act 2013 which can limit this effect. In particular, a publication by the same publisher which is substantially the same and in the same form, will not renew the limitation period.
There are additional defences to defamation relevant to to website operators. Firstly, the intermediaries defence under section 1 of the Defamation Act requires the website operator to fulfil the following conditions:
• they were not the author, editor or publisher of the statement complained of;
• they took reasonable care in relation to its publication; and
• they did not know, and had no reason to believe, that what they did caused or contributed to the publication of a defamatory statement.
Secondly, there is a “website operators defence” under s 5 of the Defamation Act 2013, which is broader. In essence, if a website operator did not post the offending article, they have a defence, provided that a notification procedure is followed under the Defamation (Operators of Websites) Regulations 2013 with specific time limits. Broadly, the complainant must send a notice of complaint to the website operator, setting out why they believe a particular statement is defamatory. The operator must contact the poster within 48 hours with a copy of the complaint, and ask them whether (a) they consent to removal of the statement and (b) whether they consent to their identification being provided to the complainant. If the poster is not available the operator must remove the statement within 48 hours. Otherwise, the poster has 5 days to respond, and can refuse consent to removal and identification to the complainant (although they must provide their name and address to the operator). In that case, the complainant will have to seek a court order to obtain the posters details from the operator and remove the statement. It is notable that mere moderation does not make an operator a poster of the material in accordance with s 5 of the Defamation Act 2013. However, the defence does not apply if the operator has acted with malice in relation to the posting of the statement concerned.
Misrepresentation can be an issue for publishers of online material, particularly where there are undisclosed conflicts of interest. For example, the fact that a reviewer will receive a commission for sales of a reviewed product via the website should be disclosed. Conversely, it is important to ensure that when mentioning other brands or trademarks on a website that there is no implied endorsement or suggestion of a commercial relationship that could be deemed trade mark infringement, e.g. including an Apple logo or branding on a website that is selling software products which are not approved by Apple.
A publisher should also be aware of consumer protection laws such as the Consumer Rights Act 2015 and Consumer Protection from Unfair Trading Regulations 2008, which outlaw misleading practices in trade. For example, an action by a trader is misleading if it contains false information or if it is likely to mislead the average consumer in its overall presentation. Therefore, a publisher making statements in a commercial context should be careful not to be misleading or provide false information.
Online publishers should be aware that material published online has legal implications. Firstly, they should ensure that no copyright is infringed and that contributors know what is permitted and agree not to publish copyright material in breach of a licence. Secondly, they should protect themselves from liability for potentially defamatory material by ensuring that they fall within the exemptions when they post the material or otherwise follow the notice procedures specified in the Defamation (Operators of Websites) Regulations 2013. Finally, publishers should ensure that they do not provide misleading statements online, particularly in a commercial context such as where goods or services are being sold.
If you require any specific assistance regarding the publication of online material and advice regarding their particular circumstances, do not hesitate to get in touch with LawyerFair.
Click here to learn more about the Start & Grow business support initiative and how you can receive the support of JournoLink (currently available in the North West, South East, and East of England) through the programme.
Written by Savva Kerdemelidis, Principal Legal Adviser at EULAW Online, and a member of LawyerFair