UK: The Internet And Defamation Liability

The tort of defamation, traditionally, attempts to balance society’s interest of free speech and the individual’s right to his reputation. The way in which this balance is struck varies from jurisdiction to jurisdiction (while some are more pro-plaintiff, others are more pro-defendant). However, the way this balance is struck in any jurisdiction determines how open a country is to free speech and dissemination of information.

That traditional function of the law of defamation is now under threat with the proliferation of information over the Internet and especially so due to its multi-jurisdictional nature. One big fear is that defamation laws can no longer effectively protect the reputation of the individual. Against this is the fear that the application of traditional defamation principles on the on-line environment is likely to fetter the effectiveness of the Internet as a channel of global communication and electronic commerce.

In so far as the Internet is concerned, defamation liability has its most important implication in respect of ISPs and websites (including e-business sites) which host the content of others. Thus, raising the prickly question of the liability of the so-called "innocent disseminators". Their liability must balance the need to protect the reputation of individuals who are defamed by postings on a global scale, against the need to ensure that through the ISPs and hosting websites, global information flows unimpeded.

Historically, publishers of material, like newspapers, who exercise editorial control have been held liable for defamation without the benefit of the defence of innocent dissemination. However, mere distributors, like newspaper vendors, have been able to avail themselves of that defence. It provides, in a nutshell, that if innocent disseminators of defamatory statements did not know of the statements, and there were no circumstances that ought to have alerted them to it (provided that they were not negligent in not being so alerted), they are protected from liability.

Liability of ISPs and Hosting Websites under the Defamation Act 1996

The historical common law defence of innocent dissemination is enshrined in section 1(1) of the Defamation Act 1996 (‘the Act’), which provides that in a defamation action a person has a defence if he shows that:

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

All three of the above requirements must be proven by the defendant in order to establish that he is an innocent disseminator.

In order to establish that a person is not the ‘author, editor or publisher’ of the defamatory statement, it must be shown, under section 1(3), that his involvement was limited to the following:

• printing, producing, distributing or selling printed material containing the statement
• 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
• as the operator of or provider of access to communication system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control

This means that a typical ISP and a typical hosting website - which does nothing more than merely host content, without editing in any way, shape or form – can seek protection as an innocent disseminator under section 1(1).

As to what amounts to a person ‘taking reasonable care’ in relation to the publication of the defamatory statement, section 1(5) of the Act provides that regard should be had to:

• the extent of his responsibility for the content of the statement or the decision to publish it;
• the nature of the circumstances of the publication; and
• the previous conduct or character of the author, editor or publisher.

Accordingly, the Act, in respect of on-line publication of defamatory statements, does no more than apply the historically available defence of "innocent dissemination".

Simply put, the position is that an ISP or hosting website which is not an ‘author, editor or publisher’; that takes ‘reasonable care’; and does not know, and had no reason to believe, that what it did caused or contributed to the publication of a defamatory statement, can escape defamation liability.

This position, it must be said, is dramatically different from the position in US which gives absolute protection to ISPs and hosting websites under the US Communications of Decency Act 1996 (section 230). Moreover, it is not in accord with the call by the EU in its recent E-Commerce Directive [Article 14(1)] that ISPs should not be held liable for information stored at the request of a recipient of the service, provided there is lack of knowledge or expeditious action is taken upon receipt of such knowledge.

One major problem with section 1 of the Act, in its attempt to apply the common law defence of innocent dissemination, is the inherent contradiction (and uniquely inherently so in respect of the Internet) between the requirement that the ISP or hosting website is not a publisher – which is so if it does not exercise editorial control over content – and the added and cumulative requirement that it takes ‘reasonable care’ in relation to the content: which would logically require some form of editorial control!

Overall, the Act has failed to make the critical distinction between every other media known to man and the Internet. Until the uniqueness of the Internet is realised, provided for and accommodated by legislation, the position as regards the implication of defamation on the Internet and e-business will remain unsatisfactory. The position can only become anywhere near satisfactory if the law establishes that ISPs and hosting websites - even if they exercise some editorial functions - should not, as a general rule, be liable for defamation for third party content, unless it can be shown that there has been an obstinate failure to provide sensible mechanisms for the prevention of the dissemination of defamatory material.

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