LIABILITY OF SERVICE PROVIDERS FOR MATERIAL POSTED ON WEBSITES FOR WHICH THEY HAVE SOME RESPONSIBILITY
Despite the rapid development of the internet, and the fact that it is now a primary medium for some classes of people, the internet has not yet been given a specific statutory treatment in respect of defamation law. It is regarded as any form of publication, and for the purposes of defamation law and under Section 6 of the 2009 Act, publication can be by “any means”. At common law, the definition of publication was always very broad, such that anybody involved could be regarded as such.
From an internet perspective, this poses very specific concerns for the internet service providers and other entities who host or facilitate the publication of material online. The question arises that in the extent to which they facilitate the transfer of statements from person A to person B, could they we regarded therefore as publishers? Naturally these tend to be very large companies, and therefore have deep pockets and thus are attractive Defendants for potential litigants. It may well be that the internet service providers in such cases have a defence of innocent publication under the 2009 Act, or could avail of the defence as specifically created for the service providers under the European Communities (Directive 2000/31/EC) Regulations 2003. There are conditions attached to those, and it is unclear at present how strenuously they would be applied at trial in any defamation case.
The leading English case is the 2000 decision of Godfrey-v-Demon. The Defendant company hosted a usenet facility which contained bulletin boards to which people could add comments. One such comment from an unknown author purported to be from the Plaintiff, Mr. Godfrey, and was defamatory of him. The Plaintiff contacted the Managing Director of the Defendant company on the 17th January 1997 requesting the offending post be removed. The Defendant allowed the material to remain until the 27th January 1997. The Plaintiff sued for defamation in respect of the publication between 17th January and 27th January, but not for the publication before the 17th January. The Judge, Mr. Justice Morland, held that on considering the existing rules, the Defendant, ISP, could be regarded as a publisher, the same way as a book seller could be classified as such. He concluded accordingly;
“In my judgment, 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 in their ISP who accesses the news group containing that posting. Thus every time one of the Defendant’s customers accesses (the relevant news group hierarchy) and sees that posting which is defamatory of the Plaintiff, there is the publication to that customer.” The judgment does suggest that had the Defendant simply been transmitting emails from one user to another, then he would not have regarded that as publication. The case is authority for the proposition that the ISP is the publisher of defamatory material, but subject to the traditional common law principle that an innocent disseminator will have the defence of innocent publication available to them.
In the later case in 2007 of Bunt-v-Tilley, the question was asked as to what precise level of involvement in the publication was there by the secondary publisher. Mr. Justice Eady focusing on the issues, such as the involvement of publication and the responsibilities for publications, concluded that the ISP which did no more than passively facilitate postings on the internet, could not be a publisher at common law. He was adamant that there would need to be some measure of involvement in publication for it to be a publisher.
In the recent 2011 case of Metropolitan International Schools-v-Designtechnica Corp, Mr. Justice Eady held that a search engine operating as such could not be seen as a publisher, in that it had no human input into the process by which the material sought was returned, and therefore could not have been seen as being involved in the process of publication.
Bloggers were examined in the 2013 case of Davison & Habeeb-v-Others, and Tamiz-v-Google. This concerned the Google blogging service, which is effectively a platform enabling users to create their own blogs and post them URL’s provided by Google (Blogspot.com). In both cases the alleged defamatory statements grounding the action were published and involves hosing on this site, and the question was whether at any stage (before or after Google became aware of the comments and asked the user to remove them) Google could be deemed to be a secondary publisher of the comments in question. In both cases Google was applying to have the matter struck out, on the basis that the relevant Court did not have proper jurisdiction. In the Davison case, the Plaintiff alleged that Google were responsible for hosting, editing, and distributing the blogspot.com website on which the offending blog was published by the primary publisher. Google did appear to have some role in regulating the content, for example, it would not permit child pornography, and there was a facility for users to complain about other aspects of the blog, including that they were defamatory. It maintained however that it was not the publisher and it could not adjudicate on whether certain material was defamatory, and it would only take down material where there was Court decision to the effect that the material was defamatory.
On the question of publication, the Court went back to the old decision of Byrne-v- Deane, where a notice left on a golf club notice board for some time was deemed to involve publication by the club, and suggested that the blogspot was more than a mere facilitator. The Court particularly noted that Google had a contents policy, and concluded that unless this was a complete sham, it must be regarded as having some measure of editorial control over what published.
This was revisited again by the Court of Appeal in the Tamiz case. This was again the publication of defamatory comments on blogger.com, and the question of whether Google could be liable. Google had been informed by the Plaintiff of the presence of the comments, and they were then removed voluntarily by the blogger in question. The question arose as to whether any liability could attach to Google in respect of the publication of the material, either before or after it was informed of the comments. In the first instance Mr. Justice Eady held that Google was not a publisher. He determined this from examining their involvement in the publication process. He particularly noted that there was over half a trillion words on blogger.com with 250,000 new words being added every minute, and that Google’s role was purely a passive one.
However, on appeal the Court of Appeal concluded that it was at least arguable that Google was a publisher, but citing the decisions in Byrne, Godfrey, and Davison, concluded that whereas Google could not be seen as a publisher before it was informed, it could be a publisher after it was informed of the potentially defamatory nature of the comments.
The conclusion therefore is that as far as the internet service providers are concerned, in order for them to be deemed to be publishers, they must be involved in the publication process. Mere facilitation of the publication is not enough, for example search engine, but where they have the capacity, whether theoretical or otherwise to control or remove the offending material, and where they become aware that the material has been uploaded, then it is arguable they may be deemed to have sufficient association with the publication, or to have assumed responsibility for it in order to be classed as a publisher.