Defamation and Internet Service Providers

Basic issues

Defamation is when a false statement is published which tends to lower a person’s standing in society, or cause society to shun or avoid them.  A defamatory statement on a website, or in a chat room, blog or email gives rise to specific issues regarding the nature of the internet.  Being a global medium questions arise, for example, as to which court or courts have jurisdiction to hear a defamation claim.  Indeed, it is possible that several claims could arise in several jurisdictions.  Council Regulation (EC) No 44/2001, the ‘Brussels’ regulation on jurisdiction, contains rules to determine which courts in EU Member States have jurisdiction to hear civil matters.  Generally, an action should be brought in the state where the defendant is domiciled, regardless of their nationality (see Article 2).       

Issues affecting internet service providers

DSL service providers that offer internet access and web hosting, or give users other ways of publishing material online, are potentially liable for the content of the material published.  The information could be defamatory, negligent, pornographic or otherwise illegal.  Although the terms of service for using, say, a blog provider, will include an indemnification clause, it may often be difficult to identify the actual author of any material which could be considered defamatory.  Liability for defamation arises following the publication of a defamatory statement.  Both the author and the publisher are considered to have published a statement.  Having said that, publishers do have a defence under s1 of the Defamation Act 1996, which can exclude or limit their liability.  Express provision is made regarding CD-ROMs and internet service providers.

Publisher’s defence

Under s1 of the Defamation Act 1996, a person has a defence to defamation if they can show that:

  • they were not the author, editor or publisher of the statement complained of

  • they took reasonable care in relation to its publication, and

  • they did not know and had no reason to believe that what they did caused or contributed to the publication of a defamatory statement.

Under s1(3) of the Defamation Act 1996, persons are not considered, among other things, publishers, if they are only involved “in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form (see s1(3)(c)), or if they are “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” (see s1(3)(e)).  Consequently, publishers of computer software on disk are covered by s1(3)(c), and internet service providers are covered by s1(3)(e).  This defence, however, is not a particularly strong one.  In Godfrey v Demon Internet Ltd [2001] the defendant, an internet service provider, made material available through its service which the claimant alleged was defamatory.  Although the claimant informed the defendant of this, the defendant did not immediately remove the material.  Consequently, the court held that the s1 defence did not apply.  At common law, as soon as the defendant was made aware of the defamatory statements it could not satisfy the reasonable care requirement of s1, nor the requirement that they did not know they had caused or contributed to the publication of a defamatory statement.  To rely on the s1 defence all three requirements must be satisfied.

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For more information on:

  • Identifying the wrongdoer
  • Law Commission report