New Approaches and Legislative Initiatives Addressing the Question of ISP Liability - Content Regulation & Defamation

In relatiom to web content, current thinking on ISP Liability 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 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 to a newsgroup hosted by the defendant ISP Demon Internet Ltd. These statements were later described by the court as being "squalid, obscene and defamatory to the plaintiff". The 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. Despite numerous requests, the defendants failed to remove the postings. The postings remained available to the 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 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 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 and 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 they had not committed a positive act in the defamatory statements publication. It was pointed out that once they had notice of the existence of defamatory 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 can be applied. 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 they had taken all reasonable care in relation to the publication.

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