Generic Legal Advice
This guidance aims only to give a brief summary of some of the legal issues that may arise over the course of an online engagement exercise.
Almost all legal issues are avoided by exercising commonsense and observing existing codes. However, the rapid pace of development and some of the unique dynamics of online engagement may result in some unfamiliar or ambiguous legal debates that government departments will need to grapple with as the hosts, authors or moderators of an exercise.
Wherever there is doubt, seek specific legal advice from departmental legal teams.
Existing Codes
Before launching a blog, forum, webchat or a similar site, familiarise yourself with the following codes:
Consider the value of reproducing these codes on the sites for the benefit of users.
Commenting/Discussion/Posting Rules
Rules for users should be provided at the point of registration (or posting), and require explicit acknowledgement (usually through a tick box).
The following are a generic set of discussion rules from a Digital Dialogues forum case study:
- Debate between users should be lively but also respectful. Taking part should be a positive experience.
- Stay on-topic. Don’t post messages that are unrelated to this online forum.
- Do not incite hatred on the basis of race, religion, gender, nationality, sexuality or any other personal characteristic.
- Do not swear, use hate-speech or make obscene or vulgar comments.
- Do not break the law. This includes libel, condoning illegal activity and contempt of court.
- Please do not post personal information – addresses, phone numbers, email addresses or other online contact details, either those relating to yourself or other individuals.
- Please do not impersonate or falsely claim to represent a person or an organisation.
- Do not add the same comment to more than one forum.
- Each comment should not exceed 1000 words.
- Do not advertise products and services.
- Do not post in a language other than English.
- If you are aged 16 or under, please get your parent/guardian’s permission before participating in this online forum. Users without this consent are not allowed to participate or provide us with personal information.
If a comment contravenes any of the discussion rules do not publish it (or unpublish it, if using a post-moderation strategy). Posts should be returned to the participant by email, along with a reference to the broken rule(s). The participant should then be invited to make appropriate changes in order that the post can be reconsidered. However, if a participant repeatedly breaks the rules, that participant’s user account can be suspended and may be permanently revoked.
Defamation and Obscenity
Defamation takes place when an untrue statement is made about a person which is damaging to their reputation. Defamation is known as ‘libel’ if the statement is recorded (such as in writing or in an email); it is known as ‘slander’ if the statement is made live (published online). The conventional (offline) rules of libel still apply on websites. There is some risk in providing a link to another website containing defamatory material. This risk can be minimised by using an appropriate link disclaimer, which makes it clear that a user is being linked to pages which are not endorsed by the blogger.
Defamation legislation gives a defence where the ‘publisher’ (the host) has no knowledge of the defamatory remarks or no reason to suspect the remarks have been made. This gives some protection to internet service providers (ISPs) but very little comfort where the ‘publisher’ has read and accepted comments. Use pre-moderation to avoid this liability as a publisher of libel.
Departments should be aware of their responsibilities as hosts of discussions where comments are invited from users, and must take action if they become aware of unlawful content being posted in such discussions. They are not liable for such content if it was posted without their knowledge, until they become aware of it.
It is a criminal offence to publish obscene material or send it via the internet. However, the definition of what is ‘obscene’ is constantly changing, and the current situation is that only extreme material is likely to carry great risk.
Legislation prevents incitement to racial hatred as well as discrimination on the grounds of race, sex or disability. This applies to the content of webpages.
Pre-moderating (see Section 3.6) and asking all registrants (or users) to agree to a set of discussion rules before allowing them to submit comments, will generally provide sufficient legal cover. Prompt removal of unlawful content is an acceptable alternative.
Copyright
Copyright is the right to prevent another from carrying out unauthorised copying. The usual copyright rules apply to websites – so copying text or images onto a website from a copyrighted source is likely to constitute a breach. Citations should always be provided, crediting the original source.
Content produced by government departments is often subject to Crown copyright protection unless otherwise indicated. Wherever this is the case, a notification should be carried on the website.
Data Protection
Data protection legislation generally prohibits the publication, or any other use, of personal data about individuals without their knowledge. Where data is sensitive then consent should also be obtained. Where it is not sensitive then it is good practice, but may not be mandatory, to do so. The following disclaimer provides general cover:
X is strongly committed to protecting the privacy of users of its interactive products and services as well as to respecting the Data Protection Acts 1984 and 1998. We do all that we can to protect information about participants and will never pass on individuals’ information to third parties.
This privacy policy applies to this specific online consultation website. The purpose of this privacy policy is to inform you, cover what kinds of information we may gather about you when you visit and register, how we may use that information, whether we disclose it to anyone, and the choices you have regarding our use of, and your ability to correct, the information.
In general, our site automatically gathers certain usage information like the numbers and frequency of visitors to the site and its pages. We only use such data in aggregate form. This collective data helps us determine how much visitors and participants use specific parts of our site, so we can improve its operation and appeal.
Information about specific users
This site requires registration to use its functions, such as posting a comment. At registration we specifically ask you for personal information. Certain information is mandatory – such as your name, valid email address, screen name, password. We would also appreciate you filling out the rest of the registration form to enable us to conduct a thorough evaluation.
Disclosure
We do not use or disclose information about your individual visits to the site or information that you may give us, such as your name, address, email address, to any third parties.
Departments wishing to publish information about someone else, even simply their contact details, should make sure the person concerned is aware that they are doing so. If any personal data is published on a website not hosted by the department, there may also be an obligation on the department to register with the Information Commissioner (known as ‘notification’). Failure to notify is a criminal offence. If there is any doubt as to whether notification is necessary, it would be advisable to check with the Information Commissioner and appropriate departmental legal teams.
Accessibility
Where pages constitute a ‘service’, sites are expected to make reasonable adjustments to allow for access by people with disabilities such as blindness or poor motor control, who may be using specialist access software rather than normal browsers. The general standard for UK government sites is level AA of the Web Accessibility Initiatives standard (version 1.0), although this probably exceeds the minimum required to comply with the law. As a ground rule, sites should always be designed to meet basic accessibility requirements – observing these design principles usually benefits those with or without disabilities alike. Consult with departmental web teams for further advice.
Party Political Content
Discussion of, or links to, party political content should be treated in an even-handed manner. While a department must not publish material which, in whole or part, appears to affect public support for a political party, it is fair to include information about a government’s proposals, decisions and recommendations.
Touching on issues that are controversial, or on which there are arguments for and against the views or policies of the department or government, is permitted provided that issues are presented clearly, fairly and as simply as possible (but without over-simplifying).
Linking
It is good practice to link to other websites and resources – in order to increase the visibility of your own site and to provide users with alternative sources of information. However, to avoid liability for the content of these sites, always provide a disclaimer, for example:
X is not responsible for the contents or reliability of the external websites and does not necessarily endorse the views expressed within them. Links to external sites should not be taken as endorsement of any kind. We cannot guarantee that these links will work all of the time and we have no control over the availability of the linked pages.
In some circumstances ‘deep linking’ into material on other websites without permission may also breach copyright in the linked page, although the law in this area is very unclear. Where possible, alert those whose material is linked to.
