Another Virgin Islands news website has been successfully sued for statements posted in its comments section.
Former Crown Counsel David Penn received a judgment in his favour against Virgin Islands Platinum News for allegedly defamatory comments written about him underneath a 2013 article about an unsuccessful lawsuit he filed against government in late 2012, according to court documents.
An assessment of damages dated last Thursday from High Court Master Eddy Ventose ordered Platinum to pay Mr. Penn $15,000.
However, the case did not go to trial, and legal precedent in the United Kingdom and Eastern Caribbean — as well as a UK statute — suggests that VI websites may, in fact, have certain protections against being sued for defamatory comments made by third-party online posters.
Precedent
In recent years, there have been at least two successful lawsuits against VI news sites for remarks made in online comment sections — often referred to as “blogs” in the territory.
Neither case went to trial. In Mr. Penn’s lawsuit against Platinum, the attorney was granted judgment because the news site did not disclose a reasonable ground for defending the claim, according to Mr. Ventose’s assessment of damages.
“Consequently, the defendant is deemed to have admitted the truth of all allegations made against them in the statement of claim,” Mr. Ventose wrote in the assessment, which was not filed at the High Court Registry as of this issue’s press deadline but was attached to an article about the case on Virgin Islands News Online (Mr. Penn’s attorney, Charmaine Rosan-Bunbury, confirmed the judgment’s authenticity).
Likewise, in 2012 the High Court granted a default judgment to Dr. Hubert O’Neal, who is now a National Democratic Party legislator for the Ninth District, for a VINO article that was followed by 11 comments he said caused “considerable distress and embarrassment to him.”
The default judgment was granted in Dr. O’Neal’s favour after VINO owner Julian Willock and VINO parent company Advance Marketing and Professional Services failed to file required documents before an Aug. 23, 2012 deadline, according to court documents.
Cases abroad
If the two VI cases had gone to trial, the outcome might have been different: Available case precedent abroad suggests that the websites may have had a strong argument against being held liable for the defamatory comments, particularly if they could identify who posted them.
In November 2015, a judgment from the St. Kitts and Nevis High Court tossed out a government official’s lawsuit against an online publication there for an allegedly defamatory remark.
That case stemmed from a comment made in July 2012 on the Nevis Pages that allegedly defamed Communications and Public Works Minister Michael Perkins.
While the court agreed that the comment was indeed defamatory, there was no evidence that it was published by the Nevis Pages, High Court Justice Lorraine Williams ruled.
At the trial, Nevis Pages attorney Henry Browne QC cited in defence of his client the 2006 United Kingdom case of Bunt v. Tilley, which involved a lawsuit against the internet service providers America Online, Tiscali and British Telecommunications for defamatory remarks made in internet chat rooms.
In that case, UK High Court Justice David Eady threw out the lawsuit on the grounds that “it is not enough that a person merely plays a passive role in the process. An ISP which performs no more than a passive role in facilitating postings on the Internet cannot be deemed to be a publisher at common law.”
Mr. Perkins’ attorney, Theodore Hobson QC, replied that Nevis Pages wasn’t simply a passive conduit because it hosted and transmitted the material, and had the power to delete it if it chose to do so.
However, Nevis Pages web administrator Peter James testified that he removed any reference to Mr. Perkins once he was notified of the comment, and Ms. Williams ruled that “no one else seemed to have downloaded the offending article” besides the claimant’s friend.
“In fact,” Ms. Williams continued, “the claimant in my opinion has suffered no loss to his reputation, as he has been recently appointed to be a senator and the deputy speaker of the National Assembly.”
Along with the UK Bunt v. Tilley case referenced in Ms. Williams’ judgment, the issue of online comments was also addressed in the 2012 report by Lord Justice Sir Brian Henry Leveson QC titled An inquiry into the culture, practices, and ethics of the press — a roughly 2,000-page investigation into British media ethics commissioned after a UK editor and a private investigator were convicted of illegally intercepting phone messages.
During the inquiry, Lord Justice Leveson questioned former Huffington Post UK editor Carla Buzasi, who said that her site generally doesn’t regulate third-party comments, according to the report.
“With regard to the oversight and regulation of content published by third parties, views of the Huffington Post UK to hosted and other user-generated content on its site are broadly typical of other hosting sites. The Huffington Post UK does not pre-moderate or edit that content,” Lord Justice Leveson wrote.
The justice explained that the Huffington Post UK has a system where comments are routed through a filter that may pick up certain word combinations or profanities, which are then directed to a moderator for review. He also said comments flagged by users are directed to a moderator for review.
Lord Justice Leveson added that Google has a similar system.
“Its attitude towards the content it hosts is markedly similar to that of the Huffington Post UK,” he wrote. “All content hosted through the service must comply with the terms of use. Beyond this, Google does not exercise any editorial control over the content it hosts on its blogger service.”
UK law
The UK Defamation Act also provides some protection to websites against being held liable for defamatory third-party online comments.
According to the act, “It is a defence for the operator to show that it was not the operator who posted the statement on the website.”
However, the website operator must be able to identify the commenter, and provide the commenter’s identify if ordered to do so by a court, according to the law’s regulations. If the website operator cannot or will not do that, he or she may lose protection afforded by the law, the regulations state.
Platinum Chief Operations Officer Cassie Huggins-Skelton declined to comment, and Mr. Penn did not respond to requests for comment.
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