John Warchus is an IT law partner at Lochners Technology Solicitors.
In the first English judicial decision on internet defamation, the High Court struck out part of the defence of reasonable care. The decision in Laurence Godfrey v Demon Internet Ltd is significant to those responsible for web sites, intranets and, as here, an internet service provider (ISP).
The claimant is a UK lecturer and the defendant is a UK-based ISP, which hosts news articles on its Usenet news server. On 13 January 1997, a potentially defamatory posting was made which purported to be sent from Godfrey. And on 17 January, he informed the ISP of its false attribution and requested its removal. Demon refused.
The defence argued that Demon was not a "publisher" of the defamatory item under English law and that, even if it was, it had a defence of innocent dissemination under Section 1 of the Defamation Act 1996. Rejecting this argument, Mr Justice Morland held Demon had failed to show that each of the Section's pre-conditions had been satisfied, especially as the defendant had refused to remove the item after the claimant's request. Referring to Parliamentary debates on the Bill's reading, the judge said the section was not intended to provide a defence of innocent dissemination.
The judge confirmed that failing to remove or destroy defamatory material could be "publication", an essential ingredient of defamation.
He also distinguished several well-known US decisions, including the cases of Stratton Oakmont v Prodigy and Cubby v Compuserve, commenting that they were only of "marginal assistance because of the different approach to defamation across the Atlantic". He said that, unlike in the US, an ISP will not be treated like a telephone company as a mere conduit for defamatory material, thereby avoiding liability.
Unless this decision is overturned, any ISP or web site host must make the very tricky choice between maintaining the alleged defamatory material and therefore depriving itself of a Section 1 defence, and interfering with the content by removing any offensive or strong material.
The decision is being appealed.