Solicitors attack site and freedom of speech
I was reading an article the other day about blog owners and the liability of comments made on their blog. The story looked at some cases where companies had threatened to, and actually begun legal proceedings to, sue the individual blog owner for comments that other people had made to their blogs.
Little did I know that days later I would be facing legal action from a large company for comments other people had made on my blog, and that it would go so far to infringe on freedom of speech.
It all started on Thursday the 5th of April, it was about 19:30 and my treat of pizza had just arrived at the door when the phone rang. We were confused at first who it was, but when I took the phone the caller announced that they were the head of a large Scottish based corporation which I had reviewed on my website.
I was extremely surprised as my personal phone number is not published on my website, however I ignored this and we had a lengthy conversation while my tea grew cold.
The conversation began quite confusingly with the accusation that my personal website had caused the break up of a marriage and family, and, according to the head of the company, my site was claiming that a member of their staff was a "sexual predator".
I calmly talked with the person and pointed out that I could see nothing that stated this, and slowly but surely the conversation moved on and we got to the crux of the matter.
Under a review I had written about their company comments had been made over a period of two years and these were causing them some concern. Most of these comments said negative things about the individual on the phone and of the company itself. The head of the company stated that he held me personally liable, and if something wasn't done about this site I would be facing legal action from his company's solicitors.
Initially they had thought that I had written the entire content, so I had to explain a little about blogs and the idea of comments. I also explained that the system automatically removed spam messages and the rest were published if they were on topic.
Despite this the objections still stood, and after a conversation lasting somewhere close to an hour we seemed to part on amicable terms with myself offering to go through the comments and remove anything that mentioned individuals.
I did some of this work that very evening, the beginning of my Easter weekend holidays, and some the following day.
On Sunday the 8th of April, during the Easter weekend holidays, the head of the company called once again. They thanked me for the changes I had made and pointed to further edits and deletions that they wanted me to make.
They wanted comments removed that they didn't agree with, for example a commenter had said something specific had or had not occurred and the head of the company was disagreeing with their experience and so wanted the comment edited or removed.
We talked for some time about individual comments and finally it came down to the fact that the head of the company wanted all comments that were negative towards them deleted in their entirety.
I said that I would consider their points but reiterated, as I had said in the previous phone call, that these comments belonged to other people, and were not made by myself. These represented other people's views and beliefs and they were entitled to them, and perhaps the best way to tackle these was to respond on the site itself. However I would consider these and would get back to him by email and he passed on his address.
This ruined the Easter weekend. I was suffering some serious anxiety, and our plan to visit wedding venues was scrapped. In fact everything was scrapped that weekend.
I carefully considered the comments that had been made on the review and indeed I did make a few more edits and deletions, leaving everything I believed to be other people's personal opinion, after all Amazon is filled with bad reviews and negative comments, surely they aren't being sued for them.
I even posted a comment stating that a senior representative of the company had been in touch and had made the following points to contradict the comments made.
So the Easter weekend passed and the country went back to work on Tuesday the 10th of April. That evening when I came home I found a recorded delivery letter slip from the Post Office saying that I had to go and sign for a letter. Since our local Post Office has the opening times of 06:00 to 12:00 I waited until Saturday to collect it.
The letter was from the Managing Director of the company who had now also tracked down my home address, again this is not on my website. He formally requested that the comments be removed and reiterated the threat of legal action. Bear in mind that this letter was received on the Tuesday and that the head of the company called on the evening before the weekend holidays, so there wasn't much time between him calling and the MD sending the letter, if any time at all.
Here is what the letter said:
Your website, Richard Brunton reviews has been brought to my attention, accordingly I have been reviewing the comments in detail.
Certainly many of the comments are factually incorrect and in many aspects we consider this to be libelous. The Company and all associated companies have a strong brand recognition. We certainly consider these comments published by yourself to be damaging.
You are confirming that you approve all comments before displaying them, hence in turn we totally believe you are brandishing comments far from the truth, which we hold you liable for.
We politely ask that you remove all comments that are inaccurate, false and libelous with immediate effect.
At all times we reserve our rights, however we trust we will not be required to take legal action against yourself, for the removal of the comments.
The MD of the Company.
You can now imagine that stress levels were rising rapidly, and I felt that my civil liberties and freedom of speech were being threatened, not to mention those of the people who had commented on my site.
So I discussed it with my partner and talked to some friends who knew more than us on these matters and awaited some response. Then came the most shocking move from the company, on the 17th of April their solicitors sent a letter to my home, a six page letter, which caused us even more distress.
The letter itself is quite confusing for a number of reasons. First it stated that all the comments should be removed, and later it stated that "The only safe course for you to adopt is to close the weblog". You can see I was unsure if they were trying to close the entire site or just the comments on the entry for their client's company. Indeed the meaning behind what exactly they are referring to changes throughout the letter, the request flips a number of times from the entire weblog being shut down to the single page entry and to the comments themselves.
The second point that I was unsure about was that they cited some sixteen comments and how they deemed them to be defamatory, yet all but two of these comments were either removed, or edited, nine days before the letter was written, when the company head called me directly.
These remaining comments, and the excerpts of others, seem totally acceptable as they represent individuals who were stating their own beliefs and experiences of the company's service that they received.
The closing statements in the letter were very clear, that they consider I have made no attempt to "edit the comments to ensure that they could not be defamatory". This is clearly untrue as the head of the company witnessed these changes some nine days earlier.
However the solicitors letter makes no mention of these phone calls and that I have politely and openly addressed concerns from the head of the company, and made a huge amount of their requested changes.
So at that point the company were threatening to sue me for comments I have already removed from the website at the request of the company's owner. So I was really confused.
What I really found surprising was that the letter stated that I was to remove any comments that the company deemed as factually incorrect. That meant that when someone states their opinion of a service, because the company simply states that this isn't true, I have to remove that comment from public view. I ask again, is this how Amazon operates?
Finally, in an incredibly dubious request, the solicitor asked that the identities of the makers of the comments were revealed to them so that they may contact them directly. Perhaps this meant that they wished to address the individuals comments directly, or perhaps that they wanted to raise legal action against each of the people who have made a comment against them on my website?
Something that I find incredibly galling is that I was given no time to respond. It would seem that when the head of the company called me they had already engaged the MD to write the letter and also the solicitors to start legal action, after all the solicitors letter was referencing comments that were not publicly viewable after the 7th of April.
The head of the company called me twice, at home, at the start of a holiday weekend. The MD's letter arrived on the first morning back to work after that holiday, and the legal letter arrived the following week bearing comments some nine days old.
All this raises some interesting questions in UK Law. Currently US Law protects site owners from liability from the comments made on their site, of course they have to police them to a certain degree, but the law is with them. However there is no such law in the UK.
More interestingly the very fact that I have shown good will to the head of the company by making a vast amount of deletions and edits shows that I have changed from a "common carrier" of information to a "publisher", and this increases my legal liability for the comments.
Actually, going by the letter of the law, my liability is increased by removing comments from my site that are recognised as any type of SPAM. I would have been better to leave all the illegal or offensive SPAM comments all across my site.
Another consideration is the whole subject of online reviews. Does this mean that sites such as Amazon or iTunes are liable for the comments made on their site about products? Could I sue Amazon if someone said something negative about my book? Could I force the film site IMDB to remove all their negative comments about my film and leave a hugely positive and false view for all to see?
While these events were ongoing there was much discussion about a set of blogging guidelines being created, yet I think this isn't addressing the real issue. The problem does not lie with bloggers as such, I feel it lies with the law not being clear about the separation of liability between those making the comments and those hosting the site on which the comments are made.
However my more immediate problem was that I was facing a law suit from a multi-million pound company whose real objection is that my review page appears amongst their official sites on the first page of Google search results for their company name, and that many of those comments made by individuals are negative.
So on the 23rd April I faxed and sent a letter to the solicitors in response to theirs, a copy of which can be seen below:
First let me express my surprise and disappointment that your client, Mr Head-Of-Company, has threatened legal action in such a formal manner after we had two seemingly positive and open phone calls over Easter weekend (6th to the 9th of April). Between these conversations on the evening of the 5th April and 8th April, I made many of his requested alterations to the comments and removed all comments that referred to individuals and which could be deemed defamatory. This left the comments which formed the beliefs and opinions of other individuals, not myself.
Also let me point out that your letter dated the 16th of April which threatens legal action against myself as the site owner, is based on a list of sixteen named comments of which only two remain wholly intact on the site. This is because between the two phone conversations with your client, who called me on my home telephone number that is not available on my site, I removed or edited almost all of these as per your Mr Head-Of-Company's request.
What I find confusing about this is that you are threatening legal action against me for comments on my site which weren't there at the time your letter was written, indeed these weren't even on the site some nine days before your letter was written.
To add to the confusion within your letter, in the fourth paragraph of page one, you state:
"…we must insist that these [referring to the comments on the Company's article] are immediately removed…"
Yet on page five paragraph three you state:
"The only safe course for you to adopt is to close the weblog."
Finally on page five paragraph four you state:
"Would you please confirm to us in writing that the weblog you have been running for the Company's has been closed down, and that you will not reopen it."
These statements contradict each other and I am unsure of the requested action. In the first statement you ask that the comments are removed, but in the second statement you are asking for the entire site (weblog) to be closed, yet in the final statement you refer to removing just the article and comments for the Company's entry.
I'm sure you can appreciate that I have no clear idea of what you are actually requesting me to do in order to avoid the threatened legal action.
With regard to the comments remaining, they are clearly the opinion and/or experience of individual making them. To further address the comments made by Mr Head-Of-Company from the phone conversation with myself on the 8th of April, I have added these to the article as a comment from a representative of the Company's and addressed the personally held beliefs of some of the individuals.
The first comment you highlight on page one paragraph six shows that Commenter's belief was that a couple of laps made 42ft. You assume the word couple to mean two. Looking at the Cambridge Advanced Learner's Dictionary this states that one of the definitions of a couple as:
"two or a few things that are similar or the same, or two or a few people who are in some way connected:
The doctor said my leg should be better in a couple of days.
A couple of people objected to the proposal, but the vast majority approved of it.
We'll have to wait another couple of hours for the paint to dry."
Although I cannot state exactly what this individual meant, the option seems to be clear that they could have meant more than two laps and therefore your statement that this is a clear implication that the pool was 21ft may not hold true.
Of some of the comments you raise which remain on the site they are clearly the opinion and/or experience of individual involved.
With the lack of clarity and the outdated information to which this letter is referring I am unsure as to what is being requested of me, to what degree this threat of legal action still remains and to what the legal threat refers to.
I would appreciate that you review the changed article from the 7th of April to which you incorrectly reference.
The following day, the 24th April, I received an email from the solicitors with an email attachment. It's so professionally written that when you open it up the words DRAFT are watermarked over every page.
Our Client: The Company
We refer to your letter received on 23rd April 2007.
We are aware that prior to our instructions on this matter, Mr Head-of-Company of our client contacted you directly in relation to his concerns about statements on your weblog and that some comments were removed as a consequence of that. However, our client subsequently instructed us to write to you at length in relation to the defamatory statements contained in your weblog, hence our letter.
You have suggested in your letter that the remedy sought by our client is unclear. This is not the case. Our client’s position is made extremely clear in the first two paragraphs of our letter dated 16th April 2007, namely that our client required you to immediately remove all defamatory comments from your weblog.
In the penultimate paragraph of our letter, it is suggested that the safest course of action for you to adopt would be to close the weblog in view of the extensive monitoring of the weblog that you would have to carry out. It is made clear in that paragraph that if the weblog is not closed and further defamatory remarks appear, our client will not hesitate to pursue you in that respect.
You have elected not to close the weblog. Further, you have not removed the comments on the weblog that are defamatory of our client.
Our client requires the removal of the following entries:-
1. 28th February 2005, Pablo
[I've removed all the specific comments]
20. 12th April 2007, Pablo (new addition)
You have had notification of the presence of defamatory statements on your weblog since receipt of our letter dated 16th April 2007. Once you are made aware of the defamatory nature of the postings, you are responsible for their continued publication and cannot rely on any disclaimer.
Our client is therefore, entitled to pursue you for such publication and is entitled to bring a claim against you for damages.
Our client requires the following:-
1. The immediate removal of the entries outlined above and confirmation from you that this has taken place, by close of business on 27th February 2007 and;
2. Your proposals in relation to damages and costs, to be received within the next 14 days.
In the absence of the removal of the entries outlined above by close of business on 27th April 2007, we will advise our client to issue proceedings against you for an injunction and damages. Equally, in the event that the entries are removed but proposals for payment of costs and damages are not forthcoming, we will also advise that proceedings are issued in this regard.
We point out to you that the longer the defamatory remarks remain present on your weblog, the more damage that is being done to our client’s reputation and consequently the higher the damages award that is likely to be made to our client in the event that this matter progresses to Court. It is therefore in your interests to remove the entries immediately.
We await your response.
This response was even more confusing, they were asking for the closure of the weblog and also the removal of comments, they didn't seem to understand what the blogging was all about and frankly they didn't care, they wanted my site off that Google results list.
So at this point I was pretty stressed out and we were panicking every night, of course the head of the company and the MD cared little of that, they don't care what affect they are having on my family, or my health. They wanted no bad publicity and at any expense.
I decided to pay a pretty tidy sum to get a well respected, and expensive, solicitor to give me some advice. I handed over all the documents and let him review and digest them, and waited.
I had engaged a solicitor who deals with many of these types of claims, mainly representing companies such as The Company and not people like me, people on the receiving end of the solicitors.
That meant his advice was pretty damn good. He thought that they were being incredibly heavy handed and that I was in the right overall. He agreed that I'd made every effort to comply and remove the defamatory comments, but this would be a test case for British law and it would mean, if I did decide to go to court, a long and protracted case with me spending a fortune in solicitors fees.
The decision was clear. We had a chat that evening and decided that we just couldn't afford to defend our right for free speech and opinion, or to defend that of the people who had commented, and so I wrote the following letter and sent it on the 10th of May:
Your client: The Company
I refer to your letter dated 24th April 2007.
Once again the requests you make on behalf of your client are unclear. The letter again mentions the removal of the entire weblog and then the removal of the comments on the entry for The Company. The term weblog refers to the entire site (http://weblog.brunton.org.uk), not just the entry for The Company.
However, that said I have assumed that you require the removal of the comments belonging to the The Company's entry. This has now been carried out and all the comments have been removed. Additionally no new comments can be made on the entry.
I do refute the claim that I am responsible for the comments made by others on the site as I act as a common carrier and not a publisher.
I have been complying with your clients’ demands very reasonably and openly since the Easter weekend telephone calls, and have made all of the changes that he requested barring the censoring of all comments that contained a negative experience of the company.
Despite my firmly held belief that I have done no wrong and operate as any review site would such as Amazon or iTunes, I find that my continuing health issues and my threatened wedding funds mean I am in no position to fight this claim.
With the removal of all the comments and the closure of the comment submission on the The Company entry I trust that we can now treat this matter as at an end.
I apologise to all those who commented on the review, to all those people who wrote their experiences and beliefs in good faith in order to help others make informed and correct decisions on how to spend their money. However I could not afford to fight this case for you.
What does this mean? Well the law is still unclear and undecided in the UK. We bloggers can be deemed liable for comments on our sites until a law is set that means we would be treated as fairly as newspapers and other publishers. Until a law is set as in the U.S. that defends our rights and allows us not to be held liable for others comments, just like Amazon, iTunes, etc.
Let this be a warning to bloggers in the UK, and may I thank the small minded and money grabbing people behind the company who have opened the door for all UK companies to threaten those who write about their experience of their service. To hell with the consumer, it's all about making more money for people like the head of the company.