Recent UK Developments in the Law of defamation on the Internet

The case of Totalise PLC -v- Motley Fool LTD, decided in February 2001, represents a significant progression in the law following the Godfrey -v- Demon case. This case also concerns the anonymous posting of defamatory statements on a web-based discussion board. The author of the comments used a "nome de web". The plaintiffs sought an order from the court requiring the defendant ISP to release information it held that could lead to the identification of the certain "Z Dust"; the anonymous author. For example unmasking the IP address of the computer from which the postings originated. Unlike the defendants in the Godfrey case, Motley Fool Ltd responded quickly to the plaintiff's solicitors letter alerting them to the existence of the offending comments on their discussion board. The "Z Dust" postings were removed and his access rights to the discussion group were revoked within the same day of receipt of the letter. "Z Dust" persisted in making offensive remarks, having been readmitted to the discussion group. He was subsequently permanently barred from the site. By this time "Z Dust" had posted in the region of ninety offensive messages concerning the plaintiffs.

The defendant ISP sought to resist the order to disclose the required personal information claiming that they could not do so; as to comply would be in breach of Data Protection legislation and would further breach the terms and conditions of the service's privacy statement. They contended that they had acted properly in denying the requests to disclose the information, as the plaintiffs merely wished to use the information as a basis upon which to get legal advice. The defendants claimed that this sort of "fishing expedition" could not justify breaching their privacy statement and or Data Protection legislation.

It was held by the court that the statements were clearly defamatory. Justice Owen commented that "Z Dust" had waged an intensive campaign of vilification against the claimant. Therefore, the information being sought was not merely a fishing expedition, it was clear that a tort had actually been committed. The only problem facing the plaintiff in bringing a claim was simply the inability to discover the true identity of the author of the offensive comments. The court referred the defence to section 35 of the Data Protection Act, 1998;

(1) Personal data are exempt from the non-disclosure provisions, where the disclosure is required by or under any enactment, by any rule of law or by the order of a court.

(2) Personal data are exempt from the non-disclosure provisions where the disclosure is necessary-

• (a) for the purpose of, or in connection with, any legal proceedings (including prospective legal proceedings), or
• (b) for the purpose of obtaining legal advice,

or is otherwise necessary for the purposes of establishing, exercising or defending legal rights.

Justice Owen found that it is not necessary that the claimant be committed to legal proceedings against a tortfeasor in order to avail of the above exemption.

The defence also argued that they were protected from releasing such information under section 10 of the Contempt of Court Act, 1981,

"No court may require a person to disclose, nor is any person guilty of contempt of court for refusing to disclose the source of information contained in a publication for which he is responsible, lest it be established to the satisfaction of the court that disclosure is necessary in the interests of justice or national security or for the prevention of disorder or crime."

It was held by the court that this enactment was not applicable to this case. The intention behind this provision is to resolve the tension that may arise between the public interest in a free press and enabling the proper function of the justice system. Section 10 is clearly designed to protect the journalist's sources. The defendant ISP took no responsibility for what was posted on their boards and thus could not avail of this protection.

The court ordered the defendants to disclose the required information. While this case may seem like a further blow to ISPs it is in fact an affirmation of the position that if they act expeditiously once they are notified of the presence of offensive content on their servers and remove it, they will effectively avoid liability. The case also gives the clearest indication to those who wish to defame, that they cannot do so with impunity behind the screen of anonymity made possible by the use of websites on the Internet.

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