On 26 March the High Court handed down the first English decision on the potential liability of an internet service provider (ISP) for defamatory material posted by third parties on bulletin boards or newsgroups hosted by the ISP.
On 13 January, 1997, an unknown individual in the US posted material on a newsgroup which the UK-based ISP Demon Internet allowed its customers to access in the UK.
The posting contained material which purported to come from Laurence Godfrey and was defamatory of him, but was a forgery.
On 17 January 1997, Godfrey notified Demon of the presence of the material on their server but Demon took no action until the material was, in the normal course, removed from the server at the end of January.
Godfrey sued Demon in the English courts for defamation.
Demon's response included an attempt to rely on the defence of 'innocent dissemination' under section 1 of the Defamation Act 1996, which is available to those who can show three things:
l that they are not the author, editor or publisher of the statement complained of;
l that they took reasonable care in relation to its publication; and
l that they did not know, and had no reason to believe, that what [they] did caused or contributed to the publication.
Since the coming into effect of the Defamation Act 1996, its effect in relation to ISPs and, in particular, the ambit and availability of the defence of innocent dissemination for ISPs, in relation to material posted or distributed by their services, has been uncertain.
The decision in the Demon case provides some limited assistance. The court decided that Demon was not a publisher of the defamatory material in the technical sense used in the Defamation Act.
However, because Demon was responsible for the publication of the material by hosting the newsgroup, and because it had been informed of its defamatory nature, Demon could not from that point onwards claim that the publication was innocent under the Defamation Act.
From 17 January, 1997 onwards Demon had reason to believe that what it continued to do caused or contributed to the publication and did not take reasonable care in relation to its publication.
The lesson from the Demon case is clear – ISPs must promptly examine every complaint of defamation in relation to materials published via their facilities.
If it appears that the material is defamatory, immediate steps must be taken in order to ensure its removal.
A failure to act in the face of a complaint is likely to undermine any defence of innocent dissemination from the point when the complaint was received.
It would be prudent for ISPs to ensure that their standard terms of business with customers expressly enable them to remove materials which appear to be defamatory.
But despite the decision in the Demon case, there remain fundamental areas of difficulty for ISPs.
What is the duty of ISPs in relation to defamatory material in the absence of any complaint? Might they still be liable to a claim for defamation in the English courts or could they avail themselves of the defence of innocent dissemination? Are ISPs under a duty to ensure proactively that no defamatory material is ever posted on their bulletin boards or on newsgroups that they host?
The answers to these questions remain unclear due to an area of inherent uncertainty in the Defamation Act 1996 itself.
The first limb of the defence of of innocent dissemination – that the ISP must satisfy a court that it is not an author, editor or publisher of the statement complained of – means that generally the more mechanical the ISP's contribution to the publication and the less the scope for any control over content, the greater the likelihood that the ISP will satisfy this test.
If, for example, the ISP merely provides a facility for posting material on a bulletin board or for accessing a newsgroup (as in the Demon case), it is unlikely to be considered to be an author, editor or publisher of the statement complained of.
The second and third limbs of the defence contain the heart of the problem. To succeed, the ISP must show that it took reasonable care in relation to the publication.
The less supervision exercised over the content of materials, the greater the risk that a court may conclude that the ISP exercised insufficient care.
However, the greater the degree of care exercised, the greater the risk that the ISP's contribution will have been more than mechanical. The court may determine that the ISP was in fact a publisher, thus undermining the first limb of the defence, even if the second succeeds.
To make matters worse, the greater the degree of care exercised over the content of materials published, the greater the risk that a court will determine that the ISP had reason to believe that what it had done caused or contributed to the publication of a defamatory statement, in which case the third limb of the defence will fail.
This places ISPs in an impossible position: should they seek proactively to monitor all newsgroups, bulletin boards and similar facilities and enforce a strict content control policy (which would place a huge burden on them), or should they simply refuse to exercise any control over content unless and until a complaint is received? Both choices carry their own risks.
Ultimately it must be for those who created the problem in the drafting of the Defamation Act 1996 to solve it.
It should not be left to ISPs to seek to determine their policies on content control without any definitive guidance as to how the courts in the UK will expect them to behave. These issues are too important to be left to chance. Urgent action is now required.
Julian Stait is a partner at Dibb Lupton Alsop. He heads the
communications and
technology litigation group.