

Ask HN: Sued (UK) over alleged defamatory user generated content, what to do? - buro9

I've just received an email with a scan of a legal letter (which has apparently been dispatched to me in physical form) basically stating that one of the websites I run has defamed and harassed a person, and that I'm to 1) apologise and retract, 2) supply a written declaration to say that it won't happen again, 3) pay his legal fees, 4) pay £10k damages.<p>My policies have always been to say that the users are liable for their content, but this doesn't sit well with me. I like my users.<p>Obviously I can do #1 and #2 (by promising a filter on content), but #3 may hurt, and #4 (damages) would actually destroy the website, and my startup. I'm a bootstrapped solo founder on a dry pasta existence, so that number seems astronomical to me.<p>The incident arose as a result of the WikiLeaks BNP publication a few years ago. At the time, web sites popped up that offered a search interface; type your own postcode in to see which members lived near you.<p>The results of these searches were posted on various forums (including this one that I run), and usually with comments by the people posting that content (not always positive as you might imagine).<p>That is in essence the issue, though this has been a slightly longer journey as the individual asked for content removal, and whilst I did respect that I run the forum with transparency and so I publish when I remove content and why, and this resulted in another member posting another comment elsewhere. The person in question then registered to call the member a paedophile, and so the original removed content was re-iterated in response by other members (Barbara Streisand effect). It is this which is the subject of the notice of pre-action.<p>I'd love advice on what my options are. They've timed it impeccably as it's a very long weekend here and the email arrived at 6pm.<p>If anyone on here knows a good UK lawyer for dispute resolution of this kind, especially one who might make a little time this weekend, I would love to be put in touch.<p>Otherwise, if anyone has their own experience from the trenches about what they've done in response to such pre-action notices in the past, I would love to be able to learn from them.<p>I realise that there is a difference between what they request and what any deal might eventually consist of, but as it stands their requests if delivered would be the end of my startup... so naturally I'm concerned about it.<p>Any other advice appreciated. Email is in my profile should it need to be non-public.
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chris_dcosta
I've worked with the one of the biggest and best known firms in the UK. They
are very expensive and very good, but I would just advise that you take a step
back for a second before you rush to the lawyers. They will break you
financially, so here's some free love (UK only I'm afraid).

TL,DR; this threat is worthless. Don't fret about it.

In the UK such letters are no more than empty words, in all cases without
exception, the onus is on the writers to bring something to court before they
can be awarded any money and that requires you to have breached some specific
point in law. So let's ask the question, "what exactly can they do?" what law
did you break? What evidence do they have that you broke the law?

I'll put it bluntly, this is blackmail they can't do anything without it
costing them first a huge amount of money and time, and their chances of
success are very small.

Look, their laywers probably said, you haven't got anything. If you like I'll
write a stiff letter. They haven't actually broken the law, but the letter may
just work.

Let's deal with the first point. As far as defamation is concerned, the fact
is you did not write the posts. You cannot be held liable for what was
written. The fact that you host the forum is not a related issue, and it
cannot be implied that because you own the site you are responsible for every
word - they would have to establish a legal case that somehow you (and every
other website in the world) is legally bound to police the content. That's
basically it.

Your defence: You should always take a position that is removed from the issue
so as to not directly link yourself to the issue.

As far as I can see, the posts are probably in breach of your terms, and as
the owner of the site you have a perfect right to decide what stays on and
what comes off your site. The best course of action here is to say that you
have looked at the posts as soon as you were made aware of them following this
letter and agree that they breach your terms, and have removed them. That's
the very most that can be expected and their lawyers will have advised their
clients so. They would also advise their clients that pursuing this further is
a waste of money.

Do not apologise under any circumstances as that would be an admission that
you are somewhat implicated.

Do not even address the point about "doing it again" - that's just bull. It's
a trap - do they think you're stupid?

Damages? They have to provide cast iron proof that they have been financially
damaged. This is almost impossible to do in cases of defamation, and they
would have to prove it to the judge. The judge will likely award zero damages,
so do not address this point.

In the UK you are only obliged to pay another person's legal fees if the judge
orders it (meaning it has to go to court first which it won't) and the basis
on which this order is made is if the other side can prove that you have acted
unreasonably (a very very difficult thing to do in law, because it relies on
legal precident of which there are very few examples). You will pretty much
have quashed that (being unreasonable) argument if you just remove the
comment. They could never claim that you had acted unreasonably, and even if
they did try to claim, it would be very very very unlikely to succeed. Judges
rarely award costs especially for something like this where the letter seems
to be a kind of extortion.

But... even if a claim for costs did succeed it still doesn't mean you have to
pay. Here's the crazy bit....

The costs award is open to negotiation, and further still if you refuse to pay
the costs (which you are perfectly entitled to do even if you've been ordered
to pay costs) the other party then has to take you to court _again_ (it's
called the high court for costs) That's more money for them to spend and they
can't get "costs for recovering costs" hahahahhaha

Even then they have to win at costs court, and you can force them to lose with
a series of offers which will result in them having to pick up all their own
costs anyway. Costs judges are very strict on what is allowable and it's
always in your favour to have them look at costs because they throw out a
whole load of stuff that can't be claimed - much to the annoyance of the
people hoping to get their costs paid for!

So put yourself in their shoes - it's going to cost a whole heap of dough just
to prove that you somehow influenced the writer, then a whole heap of dough to
try to prove that you've been unreasonable in dealing with it. So what are the
odds of their success?

Revert for fun. One last bonus for you. Lawyers are generally fair players -
meaning that they won't act whilst the other side is in the process of
replying, it's only fair. So if you send a reply, simply "ackowledge receipt
of the letter and will revert in due course".

That's real fun because their lawyer will say to them that they can't do
anything until you've replied, which could be .... NEVER ....

This all sounds like games, but it's not personal, just business, and this is
the of stuff you can legimately do to get these sort of shisters off your
back. And it costs nothing except a small bit of time.

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bdfh42
First off - don't panic - take the weekend off and enjoy it - even if you are
a republican ;)

Solicitors send threatening letters - that's how they earn a good deal of
their money. Relax - phone around next week (when and only if an actual letter
arrives) and see if any of your local legal firms have experience of web stuff
(might take a while as this sort of thing is pretty rare in the UK) and then
go and see them.

Provided you have taken steps to take down possibly offending material when it
is pointed out to you then I do not think there is likely to be a problem. But
do take advice.

An email is just that - trying to scare you - you do not yet know if it is a
real issue or just a try on from some jerk who wants to bully you - that's how
some folks live their lives.

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duskwuff
I AM NOT A LAWYER, but you probably have a pretty sound defense on the grounds
of being an innocent disseminator of the post. You are highly unlikely to be
under any legal obligation to post a public apology for a statement that you
did not make, nor for legal costs which the plaintiff incurred, nor for
"damages" absent a legal judgement.

Keep in mind that the intent of a legal letter is often first and foremost to
discombubulate you. Do take it seriously, but not _too_ seriously.

<https://en.wikipedia.org/wiki/Innocent_dissemination>

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buro9
Oh, and I have 14 days in which to respond.

Nothing can happen in the next 4 days due to the long weekend (2 bank holidays
for the Jubilee), but likewise I can't get legal advice during this time
either. So until Wednesday, all I have is HN and the opinions of others to
guide me.

~~~
bdfh42
Time deadlines from a solicitor - or anyone else other than a judge are
meaningless. They are intended to get a rushed reaction - take plenty of time.
It costs them money to start a case don't forget - so they wont rush in the
normal course of events.

When I think about it - 18:00 on a Friday evening - sounds a bit late in the
day for a UK solicitor.

