On 3 May, Yaman Akdeniz, director of Cyber Rights and Cyber
Liberties UK, called for immediate clarification in relation to
ISPs' potential liability for content on its servers.
The call followed the US Supreme Court's decision in Lunney v
Prodigy Communications Corp. Although these cases concern the
liability of ISPs, they are relevant to operators of telecoms or
computer networks, including Wans and Lans.
In the Lunney case, Anthony Lunney sued Prodigy for defamation
over obscene articles and e-mails which a spoofer had posted in his
name. The US Supreme Court threw out Lunney's case, holding that
Prodigy was not a publisher of defamatory material posted on its
network under US law and thus not liable.
In the UK, defamation is basically defined as written or spoken
words or pictures which have a tendency to lower the reputation of
the claimant in a defamation action in the eyes of right thinking
people.
The problem here is that any person who is involved in the
publication and transmission of a defamatory statement is liable
for defamation - including ISPs.
In fact, in Godfrey v Demon Internet, Judge Justice Morland held
that Demon was not a publisher of material posted to its news
groups. Unlike Lunney, this did not save Demon, because it was a
distributor of material that defamed Godfrey and thus was liable to
him.
Even if an ISP was a publisher under UK defamation law, it would
still have the usual defences to a defamation action such as truth
or qualified privilege.
Indeed, a spectacular recent example of the successful use of
the defence of truth was historian David Irving's failed defamation
action against Penguin Books and Deborah Lipstadt. Lipstadt and
Penguin Books succeeded in proving the truth of her statements that
Irving was an apologist for the Nazi regime.
UK ISPs who act as "distributors" of defamatory material have a
specific defence under section 1 (s1) of the Defamation Act 1996.
This means that the ISP is not liable for defamation if they can
show that they were not primarily responsible for the publication
of a defamatory statement (in other words someone who decides
whether or not the item gets published). And they took reasonable
care to prevent publication of the defamatory statement.
Demon delayed taking down defamatory material for 14 days after
receiving Godfrey's complaint and thus lost the benefit of the
defence. Godfrey v Demon Internet is not about what will allow you
to reply on the s1 defence, but how you can lose the benefit of the
s1 defence because you fail to remove the defamatory statement
after someone has complained about it.
This still leaves open the question of when you can rely on the
s1 defence. What an ISP has to do to "take reasonable care" under
s1 remains untested.
During the debate of s1 of the Defamation Bill 1996, the House
of Lords had the opportunity to introduce a "common carrier"
exemption for ISPs and did not do so. Their reasoning was that
because the author of postings to an ISP might be untraceable or
anonymous or of insufficient means, the victim of defamatory
material had to have a remedy against someone.
That someone was the ISP that carried the defamatory material.
In effect they treated ISPs in the same way as conventional
distributors of hard copy material, who are able to read and stop
the further distribution of defamatory material.
Unfortunately, this is notwithstanding the near impossibility of
an ISP reading everything that is posted to its network - an
argument that succeeded in the US in Cubby v Compuserve and which
would fail here.
However, this will have to change in the UK when the proposed
E-commerce Directive is implemented. Under the directive those
acting as a "mere conduit" for transmission will not be liable for
the information transmitted apart from an injection.
This will apply to many postings to newsgroups, transmission of
defamatory material and the like. Another possible approach to
reform in UK defamation law is the way the directive deals with
those who host illegal information or activities. They will not be
liable (apart for injunctions) unless they actually know that the
material or activity is illegal or, once they do know, they fail to
act promptly to take it down.
For information contact Jane Rawlings of Dibb Lupton Alsop's
e-commerce team on 08457-262728 or at
jane.rawlings@dla-law.co.uk