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.

If made aware of a defamatory statement on its servers, then, an internet service provider ought to immediately remove the statement, as it seems unlikely that it could rely on the s1 defence otherwise.  The defence probably only applies up until the moment when the internet service provider is made aware of the defamatory statement being hosted on its server.  The difficulty is in balancing this with the freedom of speech and preventing people from being able to have information removed simply because they don’t like it.

The courts have shown some signs of developing the law in this area.  In Bunt v Tilley [2006] it was held that an internet service provider could not, at common law, be regarded as a publisher, nor were they unable to rely on the s1(1) defence.  Further, they could not be expected to monitor their servers for defamatory material.  It remains to be seen how far the defence will develop inside practical and clear-cut boundaries.

Identifying the wrongdoer

Data protection law restricts the disclosure of personal data.  This applies equally to internet service providers, who must protect the personal data of their subscribers.  Data can be disclosed, among other things, to prevent and detect crime.  In Totalise plc v Motley Fool Ltd [2001] the defendants had a contract with the subscribers which included a clause that their identity would not be disclosed.  A contributor to discussion boards operated by the defendants made defamatory statements about the claimant company.  The first instance judge considered the statements to clearly be defamatory.  The claimants sought an order requiring the disclosure of the anonymous contributor’s identity, which the defendants refused to do citing the Data Protection Act 1988.  The order was granted following Norwich Pharmacal Co v Customs and Excise Commissioners [1974] which allows the courts to require disclosure of a wrongdoer’s identity.

Law Commission report

The Law Commission report, Defamation and the Internet: A Preliminary Investigation, Scoping Study No. 2, December 2002, dealt with concerns raised by internet service providers and online publishers in the light of cases such as Godfrey v Demon Internet Ltd.  Clarification and recommendations were sought regarding, among other things, the full scope of the s1 defence, and liability for defamation contained in archive material made available online.  The report found that much of current UK law is unsatisfactory, but possibilities were available, such as exempting internet service providers from liability, as in the United States.  Clearly, changes are necessary, but what changes and when they will be made is still far from being resolved.