New Approaches and Legislative Initiatives Addressing the Question of ISP Liability.

Content Regulation & Defamation:

Current thinking on ISP Liability, in relation to web content, is best illustrated by recent advances in the law on defamation on the Internet.

No consideration of ISP liability would be complete without taking a look at the landmark UK case of Godfrey -v- Demon, 1999. On the 17 th of January 1997 it came to the attention of the plaintiff, Dr. Laurence Godfrey, that an unknown party had posted a series of statements, which were later described by the court as being "squalid, obscene and defamatory to the plaintiff", to a newsgroup hosted by the defendant ISP Demon Internet Ltd. This unknown party had posted these comments using another ISP. Dr. Godfrey immediately notified the defendant ISP of the existence of the defamatory postings and requested that they be removed as quickly as possible. The defendants failed to remove the postings, despite numerous requests having being made by the plaintiff. The postings remained available to the worldwide public for a further ten days until the system automatically imposed an expiry timeout period. Predictably, the defendants sought to rely on section 1 of the Defamation Act, 1996. This provision allows for a defence against a defamation claim, where it can be shown that the defendant is not the publisher, author or editor of the statement complained of; that they had taken all reasonable care in relation to its publication and that they did not know, or have reason to believe, that they had caused or contributed to the publication of the defamatory statement. Section 1(3)E of the Act was of particular relevance to the defence:

3) A person shall not be considered the author, editor or publisher of a statement if he is only involved-

(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

The defence also contended that as an ISP they could not be expected to scrutinise every message before making it available to the public over their newsgroup server, and sought to avail of the defence of innocent dissemination. The court found that although the defendants were not a publisher within the meaning of the 1996 Act, they were, however, publishers at common law as soon as they become aware of the defamatory content and failed to remove it.

The old case of Bynre -v- Deane, 1937, was applied. This somewhat amusing case concerned the following note that was anonymously placed on a notice board of a Golf club:

"For many years upon this spot
"You heard the sound of a merry bell
"Those who were rash and those who were not
"Lost and made a spot of cash
"But he who gave the game away
"May he byrnn in hell and rue the day."

The note expressed the author's disapproval of a fellow member of the club who had apparently drawn it to the attention of the local police that certain automatic gambling machines had been kept on the club premises for the use of the members of the club. The machines were subsequently removed. The note was held to be defamatory; "byrnn" on the last line of the verse being held to be a direct reference to the plaintiff. The court awarded nominal damages to the plaintiff holding that the defendants had 'complete control of the walls' of the club and could have removed the note after they had seen it. The main point of relevance of this case is that it was found that the club owners could not defend the action by asserting that they had not committed a positive act in the defamatory statements publication. Once they had notice of the existence of statements on a notice board under their control, they should have removed it.

Although the technology is somewhat different in the Godfrey case similar reasoning is applicable. It was held that the defendants were not merely the passive owners of an electronic device through which postings were transmitted but could have chosen to obliterate the posting complained of. The critical point of this case is that once the defendants knew of the nature of the posting in question they could no longer claim that they had taken all reasonable care in relation to the publication.

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The XXX Clause is Obscene | The Register ... Internet :. Broadband; eCommerce; ISPs/Telcos; Digital Rights/Digital Wrongs; Wild Wild Web ... The XXX Clause is Obscene . By Brian Esler ...

Obscene UK ... Information on the type of obscene matter (book, magazine, Internet etc. ... via the Internet --are subject to the Obscene Publications Act 1959, ...

Court Allows Universities to Restrict Internet Access to Obscene ... rights were violated and also and injunction against the University to discontinue restricting access to Internet news groups it deemed obscene