Defamation on the World Wide Web

INFORMATION TECHNOLOGY

Defamation on the World Wide Web

Thomas Dickson examines recent case law regarding defamation online.

Defamation on the World Wide Web

Recent decisions in England have shed some light on the issue of defamation online, and the liability of those involved in the process. Earlier this year, two cases on this area of the law were the subject of High Court decisions.

ISPs

The first of these (Bunt v Tilly & Ors [2006] EWHC 407) involved a case brought against three individuals and their respective internet service providers ("ISPs"). It was alleged that one of the three individuals had posted defamatory statements on a website, and that the ISP which facilitated the posting was liable along with the individual for providing the services by which the material could be posted.

The ISPs applied to the Court to have the claim against them dismissed. They argued that they had done no more than provide access to the internet for the individuals, and neither knew nor had any reason to believe that they had done anything to cause or contribute to the publication of defamatory material.

In his dismissal of the claim against the ISPs, Eady J stated that, "I am .. prepared to hold as a matter of law that an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law". The Judge likened the provision of the services provided by an ISP to those of a telephone service provider, who would not be deemed to be a publisher and thus not liable for statements made by individuals using its services.

This decision supports the protections granted to ISPs by the E-Commerce Regulations 2002 (the "Regulations"), which were enacted to deal with such cases as that mentioned above. It would seem unreasonable, and would in fact likely be the end for online message boards, if ISPs were required to monitor the contents of all material posted by members of the public, considering the amount of material which may be posted around the clock.

This sensible judgment also goes some way to alleviate the concerns of many businesses which provide clients with internet access. It should be noted, however, that the ISPs in the case mentioned above were not responsible for hosting the website on which the material was posted. However, those who do provide such services should also be able to avail of the protections afforded by the Regulations. Regulation 19 deals with organisations which host material (i.e. make the material online via a website), and affords them protection where they meet certain criteria.

Individual Liability

The second case (Michael Keith-Smith v Tracey Williams [2006] EWHC 860) again concerned posting of defamatory material on a public bulletin board online. In this case, however, the claim was brought against the individual who posted the material only. The claimant in the case was a former parliamentary candidate, and the defendant had made a number of derogatory remarks concerning his character on the bulletin board.

The claimant obtained a court order in March 2005 to require the website operator to disclose the identity of the defendant and commenced proceedings. The defendant continued to publish offensive remarks, but failed to serve a defence in the case and judgment was entered against her. The claimant pursued a claim for damages on the basis that there had been injury to his reputation.

In this case, the Court held that the defendant had defamed the claimant and that the claimant did have a certain reputation and a high social standing. As such, the claimant was entitled to damages and was awarded £10,000 as compensation. The Court also granted an injunction to prevent the defendant from making further defamatory remarks about the claimant.

This case shows clearly that defamation laws apply to the internet, and appears to be the first case where the High Court has awarded damages against an individual in respect of online defamation. ISPs should ensure that they have systems in place to expeditiously remove potentially defamatory content from websites under their control if they wish to benefit from the protections available under the Defamation Act 1996 and the Regulations.

Thomas Dickson is an Assistant Solicitor in the firm's Corporate Department. His main areas of practice are in corporate/commercial law but Thomas also has a keen interest in intellectual property and information technology law.

Thomas can be contacted at thomas.dickson@lestrangeandbrett.com

Quote: ISPs should ....... have systems in place