No defamation liability ISP

24 May 2006

Craig Giles, Graham Smith

The High Court has ruled in Bunt v Tilley & Others that merely providing a customer with an internet access service does not render an internet service provider (ISP) liable for defamatory material sent by a customer using the service.

Mr Justice Eady held, granting summary judgment against the Claimant, that for the purposes of defamation liability an ISP who performs only a ‘passive’ role in facilitating postings on the internet should not be deemed to be a publisher at common law. The significance of this welcome clarification for ISPs is that while an ISP is in any event protected under the E-Commerce Regulations from liability for its mere conduit activities, that does not prevent the grant of injunctions. After Bunt, if the ISP can show that it performed only a passive role there could be no basis on which a claim for defamation against the ISP could be maintained at all. The judge also made comments suggesting that a court would in any event be unlikely to grant an injunction against an ISP for conduit activities.

The judge emphasised the importance, if it is alleged that an ISP’s activity was more than passive, of demonstrating the ISP’s knowing involvement in the process of publishing the relevant words. There had to be a degree of awareness or at least an assumption of general responsibility on the part of the ISP. However, the decision is restricted to truly passive activities. It does not, for instance, change the ruling in the previous case of Godfrey v Demon Internet Limited that an ISP who hosts Usenet newsgroups publishes the contents of those newsgroups when they are accessed and read by third parties. The distinction between providing internet access and hosting newsgroups appears to lie in the difference between transmission and storage and in the ability of an ISP to decide which (if any) newsgroups it hosts.

The case also provides the first judicial guidance on the E-Commerce Regulations 2002, in particular what is required for a hosting ISP to be fixed with knowledge of the unlawful content so as to deprive it of the protection afforded to hosting activities by Regulation 19. Mr Justice Eady suggested that not merely knowledge of the defamatory nature of the content, but some knowledge of the strength or weakness of available defences to the defamation claim, would be required. If that is right, ISPs have significantly greater protection under Regulation 19 than under the provisions of s.1 of the Defamation Act 1996.

Mr Bunt conducted the case in person. Since Mr Bunt did not rely on any technical expert report, there was no professional legal argument on Mr Bunt’s side and the judge commented that Mr Bunt’s pleaded case was ‘defective’ in failing to establish knowing participation by the ISP defendants, some caution may be appropriate in applying the judgment in future.

Mr Bunt’s case

John Bunt ran a website for his business which incorporated a discussion forum. He alleged that Mr Tilley, the first defendant in the proceedings, posted a ‘thread’ on that website disparaging the quality of the batteries that they sold. Mr Bunt also alleged that Mr Tilley, along with two other individuals who were defendants in the case, made a number of other highly distasteful and defamatory comments about him on other discussion forums and newsgroups.

Rather than simply pursuing an action against those three individuals, Mr Bunt’s case was controversial in that he also claimed against their respective ISPs - AOL, Tiscali and BT. Mr Bunt did not claim that these companies hosted any defamatory material - only that the three individuals had used the ISPs as a conduit to publish the offending comments. Hence he argued the ISPs were providing “corporate sponsorship and approval” of the defamatory postings.”

The ISP defendants applied to strike out Mr Bunt’s claim or for summary judgment on the basis that it stood no reasonable prospect of success.

The decision in Godfrey

Mr Bunt relied heavily on the case of Godfrey v Demon Internet Limited. Dr. Godfrey was a physics lecturer who discovered that someone had posted a message, purporting to be written by him, on a discussion group called “soc.culture.thai”. Dr Godfrey contacted Demon Internet, who hosted the discussion group, and asked them to remove the message from their server since it was a forgery and contained defamatory material.

Demon Internet did not remove the message, and it remained on their servers for a further ten days until it was automatically deleted. Dr Godfrey sued for libel, claiming damages for the period from when Demon Internet learned of the defamatory material to when it was eventually deleted from their server.

As to whether Demon had published the material at all, Morland J declared that “the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting.”

Further, once Demon Internet knew of the defamatory content and had not removed it from their servers, they were unable to rely on the protection of s.1 of the Defamation Act 1996.

The position at common law

Although Eady J was able to dismiss Mr Bunt’s case on the basis that the pleading was obviously defective, he proceeded to give his general opinion on the role of ISPs carrying out conduit activities. Much as the postal services should not be liable for delivering libellous letters, or telephone companies should not be held accountable for slanderous phone calls, Eady J held that as a general rule under common law, “persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers.”

But where does the boundary lie between performing a ‘passive role’ and actively permitting a publication? Eady J held that the crucial consideration was whether a person had “a knowing involvement in the process of publication of the relevant words.” He ruled that in order to impose legal responsibility upon anyone under the common law for the publication of words, it was essential to demonstrate that they had a degree of awareness that such words existed, or at least an assumption of general responsibility. In relation to pure conduit publishers the practical threshold is likely to be knowledge of the actual postings. When dealing with ISPs who host information, knowledge of “the process of publication” is more likely to be sufficient. Hence the ISPs in Bunt could not be held accountable as they had no knowledge of the actual postings on which the claimant was basing his case. This is in contrast to the position of Demon Internet in Godfrey, for whom knowing involvement in the hosting of the discussion group was sufficient.

The E-Commerce Regulations 2002

Although content to reject Mr Bunt’s claim on the basis of the common law, Eady J went on to provide the first judicial guidance on the Electronic Commerce (EC Directive) Regulations 2002. These define the circumstances in which internet intermediaries are not liable for material which is hosted, cached, or carried by them but which they did not create.

Regulation 17 provides immunity against pecuniary remedies or criminal sanctions to ISPs who act as a “mere conduit” for the transmission of data and do not initiate or modify the transmission, or select who receives it. The Regulation does allow for some storage of data, but this must be “automatic, intermediate and transient”. Hence organisations will be protected in situations where they merely provide the conduit through which postings on an information board are relayed, but only if they have the procedures in place to delete the data when it has been received and ensure that it is not held for “any period longer than is reasonably necessary for the transmission”.

The exemption provided by Regulation 17 is a blanket one, irrespective of what knowledge or notice the conduit ISP may have of any particular complaint. In such a situation, Eady J queried what practical relief an individual could be justified in seeking. The Regulations explicitly leave open the right to seek an injunction against the further publication of defamatory material but, as Eady J pointed out, in many cases the granting of injunctive relief would be wholly disproportionate. An order preventing the ISP supplying any services to the individual defendant would be Draconian and pointless, since the individual would be able to obtain the services elsewhere. Further, an injunction restricted to publication of the defamatory words granted against an ISP engaged only in conduit activities would be pointless since the ISP has no way of ensuring compliance with its terms.

Further protection for ‘hosts’

Eady J also considered a defence raised by BT alone who had anticipated an argument by Mr Bunt that BT was liable for hosting Usenet newsgroups to which defamatory comments had been posted. BT relied on the hosting defence in Regulation 19, which provides that a service provider that has stored information is not liable if it does not have actual knowledge of the defamatory material or, once it has discovered the existence of such material, has acted expeditiously in removing it.

In order for an ISP to have “actual knowledge”, Regulation 22 requires that they should have received adequate notice about the details of the person making the complaint and the whereabouts of the offending words. Since, despite written requests, Mr Bunt had not given BT notice of the correct postings Eady J declared it would be “wholly impractical” for BT to monitor its servers constantly for any defamatory content about him.

Regulation 22 also requires anyone complaining to an ISP to give reasons why the material is unlawful. Eady J asserted that “In order to be able to characterise something as “unlawful” a person would need to know something of the strength or weakness of available defences”. If this is the case, Regulation 19 provides significant extra protection for ISPs than is available under the separate defences provided by s.1 of the Defamation Act 1996. These defences are disapplied if there is mere knowledge of the defamatory nature of the content. If Eady J’s view is followed, an ISP should not be deemed to have ‘actual knowledge’ of a complaint giving rise to liability unless the person making the complaint has explained the strengths and weaknesses of his claim.

As the claimant in Bunt was not legally represented, one should exercise caution in drawing any broad conclusions from the case. However, the decision does at least provide some welcome reassurance to ISPs. The combination of the common law, the Defamation Act and the E-Commerce Regulations may provide a rough patchwork of protection, but ISPs can rest easier knowing that if they can demonstrate that they performed only a passive role, there will be no basis for a defamation claim against them.

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