Are you liable for the smut on your network?



On 3 May, Yaman Akdeniz, director of Cyber Rights and Cyber Liberties UK, called for immediate clarification in relation to ISPs' potential liability for...



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

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