Internet Service Providers and defamatory statements

Statements made over the internet

The internet albeit enhancing the ways in which we communicate with each other, do business and act as consumers also brings with it certain problems. For example the amount of comments and publications added to the web on a daily basis is an extremely difficult thing to track. As a consequence of this the Internet Service Providers (ISPs) have their work cut out when trying to police potentially defamatory statements.

What is meant by a defamatory statement?

A defamatory statement is one which is false and causes damage to a person’s reputation or otherwise does them harm.

Will Internet Service Providers be liable for defamatory statements made over the internet?

There is a defence under Section 1 of the Defamation Act which is intended to protect intermediaries, who could otherwise be liable for publishing a defamatory statement on the internet.

What needs to be shown in order to fall within this defence?

In order for an individual to fall within this defence the following things will need to be shown:

  • That the individual was not the author, editor or publishes of the statement
  • That the individual took reasonable care in relation to its publication
  • That the individual did not know and had no reason to believe that what he did caused or contributed to the publication of a defamatory statement

What is meant by author, editor or publisher?

Section 1(2) of the Defamation Act provides definitions of what is meant by author, editor or publisher. They are as follows:

  • Author – the originator of the statement
  • Editor – a person having editorial control or equivalent responsibility for the content of the statement or the decision to publish it
  • Publisher – a commercial publisher, that is, a person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business

Under what circumstances will an individual not be considered an author, editor or publisher?

According to the Defamation Act a person will not be considered to be an author, editor or publisher if he is only involved in the following:

  • In processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded
  • As an operator or provider of a system or service by means of which a statement is made available in electronic form
  • As an operator of or provider of access to a communication system by means of which the statement is transmitted or made available by a person over whom he had no effective control

What is the purpose of this defence?

The main purpose of the above defence is to ensure that Internet Service Providers (ISPs) and other intermediaries are intended to benefit from the defence by falling into one of the above categories of exclusions.

The second two of the most relevant for Internet Service Providers (ISPs).

Is there any possibility that an Internet Service Provider could become a publisher under the Defamation Act?

There is the possibility that an Internet Service Provider could be deemed to be a publisher in relation to a defamatory statement and thus liable for the publication of this statement.

When will this occur?

The possibility of this occurring happens when an Internet Service Provider (ISP) has been made aware of the existence of a defamatory statement.  An Internet Service Provider can thus be deemed to be a common law publisher when they have been made aware of a defamatory statement and have taken no action to remove the existence of the statement.

Accordingly once it was established that the Internet Service Provider was in fact a publisher then the ISP would not be able to successfully argue that it did not know, and had reason to believe, that what it did caused or contributed to the publication of the defamatory statement.

What should an Internet Service Provider (ISP) do when they have been made aware of a defamatory statement?

When an Internet Service Provider has been made aware of a defamatory statement, in order to rely on the Section 1 defence, they must remove the allegedly defamatory postings as soon as they have been made aware of their existence.

What is this removal process called?

The removal process is called a notice and take down procedure.

Can an Internet Service Provider first investigate the claim before removing it?

The Internet Service Provider would not be entitled to first investigate the merits of the allegation not to assess the availability of other libel defences. This would only be able to be done if the Internet Service Provider suspends access to the posting while it does so.