Media law

Internet service providers and legal liability

'The other side of the world' is not so very far away.

Through modern technology, and in particular the Internet, worldwide communication has become incredibly easy.

All countries can now effectively be close neighbours.

But although we may share the same technology, it is by no means the case that the national laws that govern that technology are the same or even compatible.A striking example of this is the way in which the US and the UK both deal in very different ways with the liability of Internet service providers (ISPs) for the publication of defamatory content carried by them.

Godfrey v Demon in the UK and Lunney v Prodigy in the US have both been concluded recently, but in different ways and with very different results.On 1 May, the US Supreme Court upheld a previous court ruling in favour of the ISP Prodigy, which had been sued by Alexander Lunney after an obscene and threatening message had been posted by an impostor in his name.

This ruling gives ISPs complete immunity from suit in the US.It can be difficult to trace the source of an anonymous posting and, even where this is possible, the author of the message may not be worth suing.

Far easier, therefore, for the victim to take action against the ISP to obtain damages from its deeper pockets and to obtain an order from the court that it remove the posting.However, the Supreme Court in Prodigy held that an ISP could not be held liable for defamatory postings on its sites.

'We are unwilling to deny Prodigy the common law qualified privilege afforded to telephone and telegraph companies,' the court said.

It found that the public would not be well served by requiring ISPs to screen their sites, and the millions of postings that they host, for potential defamatory content, as this could lead to the unwelcome chilling of freedom of speech.By contrast, in the UK it appears that this is precisely what might be required.

Last month, the ISP Demon Internet settled a libel action brought by the academic Laurence Godfrey over defamatory allegations made in a posting on its site.

It paid a settlement figure of 15,000 and costs estimated at 250,000.Under the Defamation Act 1952, any publisher of defamatory material could be liable to the plaintiff, irrespective of intention to defame or even knowledge that it had done so.

However, the Defamation Act 1996 appeared to go part of the way to rectifying this position by introducing s.1 of the Act to cater for innocent disseminators.

Not available to the author, editor or publisher, the defence can be used by parties with only secondary responsibility for the publication, such as the printing, distribution or sale of material containing the statement complained of, including ISPs.In an early interlocutory hearing, Mr Justice Morland had said of Demon that 'the defendants were clearly not the publisher of the posting' and 'incontrovertibly can avail themselves of section 1 (1) (a)' of the Act (see [1999] Gazette, 7 July, 32).

So why then did Demon settle the action?To be able successfully to run the defence, a defendant must also show that it took reasonable care in relation to the publication of the statement complained of (s1 (1) (b)) and did not know and had no reason to know that it contributed to the publication of the defamatory statement (s1 (1)(c)).

Dr Godfrey had written to Demon, notifying the ISP of the alleged defamation, but it had not removed the posting.

Had the matter gone to trial, no doubt the court would have decided whether that had in fact constituted reasonable care and whether the ISP remained 'innocent'.

Presumably, Demon considered it would be unable to convince the court of this and, therefore, unfortunately, no such court ruling was required.The position in the US is crystal clear.

An ISP will not be liable for defamatory statements posted on its sites.

The position in the UK is far from clear, and some would say far from fair.

There are fears that the lack of clarity will force ISPs to bow to aggressive moves by potential claimants who simply allege that the postings of which they disapprove are defamatory.

Without any facts or background, the ISP will have to take a quick decision and either remove the posting or take the risk of being sued if it is not removed.

So does the current UK position serve to chill speech in the UK? Solicitor advocate David Price maintains that the European Court of Human Rights (ECHR) in Strasbourg will have to decide.

He is acting for the magazine Outcast, a satirical and investigative magazine aimed at a homosexual readership, which intended to publish an article about the Pink Paper, a more mainstream homosexual community magazine.

It had sent a list of questions to the proprietor of the Pink Paper in preparation for its article.

In response, the paper instructed solicitors to write to the printers of Outcast and to Netbenefit, the ISP hosting the Outcast Web site, notifying it of potentially defamatory content in the proposed article.

According to Mr Price, the ISP looked at the site and considered that it might be of a nature likely to contain a libel which could deprive them of the s.1 defence.

Not willing to take the risk of being on the end of legal action, Netbenefit decided to pull the site.

David Price says the magazine is a victim of the oppressive law against disseminators in the UK.Mr Price will also be fighting on behalf of journalist John McVicar, who he says is another victim of these laws.

Last year, the Gazette reported that Mr Price was petitioning the ECHR on behalf of Mr McVicar, over the successful libel action brought against him by the former Olympic athlete Linford Christie (see [1999] Gazette,14 April, 28).

Part of his claim is that his rights under the convention were breached as the distributors and printers, who were also liable under UK law for the distribution of the defamatory article, and also sued by Mr Christie, could seek an indemnity from him in respect of the costs that they were ordered to pay.

Both cases will be heard together.There is an obvious disparity between the vagaries of UK law and the clear-cut position of US law as regards ISP liability.

This is likely to prove problematic because of the global nature of the medium.

While postings will not be actionable against the ISP in the US, a posting accessed in the UK, wherever it originates, may lead to libel action in the UK courts.In a world where the Internet serves to unite countries miles apart, surely it cannot be long until the hugely divergent national laws that govern it are brought closer together.

by Amber Melville-Brown, Finers Stephens Innocent, London