The English High Court has reviewed in detail the requirements of Regulation 19 of the 2002 E-Commerce Regulations, implementing the hosting defence of Article 14 of the E-Commerce Directive, in the context of a defamation action against the operator of a political blog site.
In Kaschke v (1) Gray (2) Hilton, Ms Kaschke alleged defamation in respect of an article said to have been posted by Mr Gray on a political blog on a website run voluntarily by Mr Hilton. Mr Hilton applied for summary judgment on the ground that Ms Kaschke had no realistic prospect of defeating his defence based on the E-Commerce Regulations.
Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 provides:
“Where an information society service is provided which consists of the storage of information provided by a recipient of the service, the service provider (if he otherwise would) shall not be liable for damages or for any other pecuniary remedy or for any criminal sanction as a result of that storage where –
(a) the service provider –
(i) does not have actual knowledge of unlawful activity or information and, where a claim for damages is made, is not aware of facts or circumstances from which it would have been apparent to the service provider that the activity or information was unlawful; or
(ii) upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information and,
(b) the recipient of the service was not acting under the authority or the control of the service provider…”
The Court reiterated that the purpose of summary judgment is to dispose of cases where there is no real prospect of success either way, and not to dispense with the need for a trial where there are issues that should be investigated. The judge determined that there was a realistic prospect that Mr Hilton might fail to show that he was entitled to invoke the hosting defence. This was because there was an issue to be determined at trial as to whether his activity in relation to the post in question was or was not restricted to storage of the post. In reaching his conclusions, the judge reviewed the aspects of the hosting defence which would need to be considered at trial.
Did the hosting defence apply to Mr Hilton?
It was first necessary to determine whether the hosting defence applied to Mr Hilton. There was no reason in principle why the operation of a chat room should be an activity which is not eligible for protection of the hosting defence. For the hosting defence to apply, Mr Hilton was required to show that as a service provider he did no more than store the information in question. To answer this question it was necessary to consider the extent of Mr Hilton’s control.
Ms Kaschke argued that if the person controls a website comprising more than one web page the question of whether the service consists of the mere storage of information must be answered by reference to the website as a whole, and not just the page containing the defamatory words. The judge did not accept this. He stated that a person is not denied the hosting defence by the mere fact that he is also engaged in activity on the same website which provides some other service, even an information society service, which does not consist of the storage of information.
Whether or not Mr Hilton was entitled to the immunity conferred by the hosting defence depended on whether the service provided by Mr Hilton consisted of and was limited to the storage of the information. If the answer to that question was that it does consist only of storage of the information, Regulation 19 immunity is potentially available even if it would not be available in respect of other information also stored by the defendant in respect of which the service provided by the defendant goes beyond mere storage.
The question was therefore to be considered by reference to the specific page containing the blog said to have been posted by the first defendant alone and not to the website as a whole or the homepage or even the general storage of blog posts on web pages made available on the website.
The judge considered other aspects of Mr Hilton’s website and commented that it was clear from the evidence that his involvement in the website as a whole and in particular the homepage went beyond the mere storage of information e.g. he wrote articles, conducted polls and interviews, edited pieces to more prominent positions and sometimes checked for spelling, grammar and made “corrections”. Given that Mr Hilton’s involvement in the homepage went beyond mere storage the hosting defence would not be available in respect of liability for defamatory words appearing in the homepage.
This evidence illustrated why it was potentially important to identify with precision the information society service referred to in Regulation 19. It was in the judge’s view clear that if the relevant information society service was the website as a whole or the homepage, it would not fall within the definition of consisting only of the storage of information. Accordingly Regulation 19 immunity would not be available to Mr Hilton.
Similarly if the relevant information society service was the hosting of all blogs posted on web pages made available by Mr Hilton on his website it again seemed to the judge at least arguable that that also would not fall within the definition of consisting only of the storage of information. In his first witness statement Mr Hilton stated in terms that where a blog is promoted by him, he might check the piece for spelling and grammar and make corrections. That in the judge’s view arguably went beyond mere storage of information. The fact that Mr Hilton on a few occasions removed blog posts on grounds of bad language, political provocation or offensiveness falling short of defamation again in the judge’s view made it at least arguable that the service provided in respect of those individual blog posts and also in respect of the general service consisting of making available webpages on his website for such blogs to be posted consisted of more than mere storage.
However the judge’s view was that the relevant information society service was the hosting of the specific material alleged to give rise to liability. In considering whether in relation to the actual blog posted there was a realistic prospect that Mr Hilton would fail to show that his hosting of it did not go beyond mere storage, the court would be entitled to have regard to any evidence as to the manner in which the website as a whole, the homepage or the general hosting of blogs was operated by Mr Hilton. However such evidence would only be relevant if and to the extent that it related to the question of whether Mr Hilton’s hosting of the defamatory blog went beyond mere storage.
On the basis of the evidence, the judge determined that the hosting defence would be potentially applicable to Mr Hilton’s hosting of the offending blog. However the issues should be investigated at trial as there was a realistic prospect in the light of the evidence, including that concerning his interventions in other blog posts, that as a result of cross-examination or testing of evidence, the defence might fail.
The other conditions for the hosting defence to apply
A further requirement of the hosting defence is that Mr Gray, as the alleged recipient of the service, was not acting under the authority or control of Mr Hilton as the service provider. The judge determined that it was not necessary to answer this question. However he commented that there was a distinction between the service provider’s control over the stored information, the absence of which Recital (42) suggested was a factor in establishing that the hosting did not go beyond mere storage, and lack of control over the recipient, which focused on the conduct of the recipient of the service,
In this case there was no evidence that Mr Gray was acting under the authority of Mr Hilton, but the evidence raised a proper question to be tried as to the extent of control exercised by Mr Hilton over the content of the allegedly defamatory posted material.
There is no general obligation on service providers to monitor the information which they transmit or store. However to the extent that specific content is monitored or moderated, the hosting defence may not be available. In determining this, the court will on the basis of this decision consider the role of the service provider in relation to the specific material complained of, not the site as a whole. Although this was a summary judgment hearing, the comments in this case provide useful guidance and emphasise the dangers for a host of meddling in content posted by users of a discussion forum, blog or similar service.
Case reference: Kaschke v (1) Gray (2) Hilton  EWHC 690 (QB)