Cyberlaw: Compare and contrast the liability of Internet Service Providers in England and Wales and the United States of America in relation to defamation.

‘The material part of the cause of action in libel is not the writing, but the publication of the libel.’11 

(ii) United States of America:

Contrary to UK law, the US does not place such a high burden on the responsibilities of ISP’s. The legislation in the form of the US Communications Decency Act, represents their attempts to regulate defamatory material.12 Section 230(c)(1) states that ;

‘No provider or user of an interactive computer service shall be treated as the publisher…of any information provided by another information content provider.’13

The structure and wording of the Communications Decency Act, created an immunity for internet service providers, whereas the UK legislation refuses to do so. The USA is interesting because it provides a complete contrast to the UK law and provisions. Indeed, US service providers have immense protection with regards to third party publications. Originally, the law in the US centred around the CompuServe case14, whereby the defendants were deemed to be the distributors, rather than the publishers of the defamatory material, merely on the basis that they had no knowledge of the defamatory substance.15 The subsequent Stratton16 case illustrates how in the US, the ISP’s have to actually take editorial control over the substance before they will be held responsible. However, in the UK, the ISP’s are under more significant pressure. A modification to the US law was seen in Lunney v Prodigy17, where it was stated that no provider or user shall be held liable for any material taken in good faith and that ISP’s should be seen as conduits rather than content providers.18 The argument that the US does not have its main concern with the protection of reputation can be seen in the important case of Zeran19, which is of particular note given the nature of the facts of the case. The plaintiff was a victim of a malicious hoax, whereby death threats and threatening calls were made.20 Despite the fact that AOL had been notified of the defamatory content and were negligent in the sense that they did not remove the material, the courts supported AOL due to the plain language of section 230, hence AOL attained a federal immunity.21 The mere fact that the material originated from a third party was a good enough reason to divert liability.

We can contrast the case of Zeram to the UK case of Godfrey v Demon22 due to the similarity of the two cases I.e. they both gave notice to the ISP’s. However, under UK law, liability of the ISP was achieved under section 1 of the Defamatory Act 1996. Similar cases under US law include that of Drudge23, and the worrying aspect of this case was that AOL were given totally immunity as no distinction was made between a publisher and a distributor.24 Although the US doesn’t want to deter providers from regulating, perhaps, in extreme cases such as these, ISP’s should still have some responsibility for their conduct and what they do or don‘t do so to speak. Moreover, the first amendment of the US Constitution provides stronger protection of the freedom of expression (arguably at the severe expense of the protection of reputation).25 Whilst the ’deep pocket’ arguments doesn’t work out in the USA, the fact that the victim must identify the person who posted the material in order to receive relief for the damage caused to their reputation, seems a little unfair, particular given the vast nature of the internet and the extreme difficulties that may be experienced in trying to locate the perpetrator.

EU Policy is in line with UK policy in the form of the e commerce directive, which refers to ISP liability with regard to publishing by 3rd parties.26 The EU e directive regulations of 2002 were implemented into UK law which have similar in wording to section 1 of the Defamatory Act, the only difference being, that these regulations applied to copy right and child pornography, as well as defamation. Whilst ISP’s are required to remove content which they are given notice about, articles 12, 12 14 and 15 of the EU directive states that they have no obligation to monitor or police their users.27 So, the UK does provide some leniency towards the conduct of ISP’s. Later on in the essay, I am going to point out some of the flaws of both the US and UK approaches in an attempt to learn how both constitutions can learn from each other.

6. Similarities between England and the US in appointing liability.

By comparing how the two jurisdictions appoint liability, it has become apparent that difficulties arise in trying to find an adequate balance between the protection of reputation and the right of others to express themselves. However, in areas of public interest such as within the political field, there has been some shared consensus as to why in certain circumstances, the liability of ISP’s should be minimised. This can be seen in the US case of New York Times v Sullivan28 and the recent decisions in the UK cases of Derbyshire County Council v Times Newspapers29 and Reynolds v Times.30 In all three cases, concerns for the private concerns of individuals were outweighed by the interest in seeking democracy and truth. Since this is consistent with US traditions in their liability appointing process, it can be assumed that the UK is beginning to conform to principles protecting free speech, and hence is no longer primarily concerned with merely protecting the reputations of private individuals in all circumstances. The UK has shown willing to be flexible with its approach to finding liability and therefore shares some of its practices with the US.

7. Defences in England and Wales:

1. (1) In defamation proceedings a person has a defence if he shows that:

(a) he was not the author, editor or publisher of the statement complained of,

(b) he took reasonable care in relation to its publication, and

(c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.31

Therefore ISP’s may expose themselves to liability via editorial processes, as in the case of Godfrey.32 Demon Internet was the main ISP in UK, whereby it incorporated usernet discussion groups. An Anonymous person made a posting posing as the victim.33 Lawrence Godfrey them Informed the ISP and asked them to remove the material from service. Despite having the power to act, they failed to do so and the posting remained available on server until its expiry.34 Proceedings for libel were made. The defence by Demon was that they did not published it, the news groups did. The defence used was that whilst they did have the technical capability to remove material, they were not in position to judge whether statement was true or not. They relied upon  s.1 of the Defamatory Act I.e. they were not the publisher of the statement complained off, they had taken reasonable care, did not know and had no reason to believe, etc.35 They contended that they had not ‘published.‘ It was held that transmission of defamatory material constituted a publication of that posting to any subscriber and demon internet was not merely the owner of the public device, but had published defamatory content and so they could not rely on defence.36 As a defence, Demon tried to argue that Godfrey had provoked the response of other users, but this argument failed, as they had actual knowledge.37 It can be noted that whereas the US may be correct in limiting the liability of ISP’s in order to deter them from regulating, in cases where they have the ability to prevent damage to a person’s reputation, perhaps they could be under more pressure to prevent such an occurrence. However, the freedom of expression in the US seems to outweigh this argument.  

Some would argue that the UK has, to a certain extent, achieved the right balance between protecting one person’s reputation and protecting another’s freedom to express themselves.  Indeed, in the case of Reynolds,38 it was stated that an action cannot be brought be city council/local authorities. The House of Lords in the UK has moved from the concern of the private reputation of others towards democracy and truth.39 Therefore, the encouragement of freedom of expression has been increased in the UK. Perhaps even the UK has learned something valuable from the US approach. Indeed, whilst Article 10(2) of the 1980 European Convention of Human Rights40 limits freedom of expression, the limits of acceptable criticism are wider as regards to politicians and people in the public domain as this category of persons open themselves up to close scrutiny, hence a greater tolerance to defamatory statements in the UK will be permitted. However, there is no defence where a statement is directed personally towards a politician I.e. this may constitute a defamatory statement.41 

Furthermore, the defendant has three other defences available with regards to defamatory substance that has been accessed on the internet.42 Firstly, if the defendant can prove that his/her comments were the truth and the defendant can provide evidence, then the material will not be considered to have been defamatory in nature, Secondly, the defendant may make a claim of fair comment if the matter commented upon was one of public interest e.g. if it was related to state activities etc. Thirdly, the complicated defence of privileged occasion can be used in the form of absolute or qualified privilege.43

 

8. Criticisms of assigning liability to ISP’s:

The greatest difficulty for the common law systems within the UK and the US can be seen in the liability of ISP’s for defamatory statements published by third parties who use their systems.

Juries are instrumental to the outcome of proceedings. They have a two-fold role.44 Firstly, they must decide upon the natural and ordinary meaning of concepts. And secondly, whether material is defamatory. Juries may not understand meaning between individuals.

The Godfrey45 case in the UK had a chilling effect on free speech. Service providers in the UK have no option but to remove and defamatory substance. Concern can be seen in the argument that IPS’s are required to act as the defendant, judge and jury all at same time once notice has been provided.46 There is also concern that international companies may use the Defamation Act to silence fair comment arguments.47 

In 2002, there was an inquiry at law commission level named; defamation and the internet48 which observed that ISP’S in the UK were being tactical targets and several reforms were suggested one of which was that ISP’s should be taken out of chain of liability.49 However, this did not lead to a change in the law or further action.

Within England and Wales, it can be argued that assigning liability to ISP's is unjustified in certain circumstances. The case of Rindos v Hardwick50 

demonstrates that where defamatory substance is published, it is assumed that it has been accessed i.e. limited proof is required. Although this is an Australian case, the approach used is similar to that in the UK and so warrants our attention Indeed, in this case, damages were assessed on the basis that 23,000 people may have viewed the material i.e. they had access to 'science anthropology.'51 To digress slightly, the law of tort states that proof of damage must be established for a claim in negligence, whereas for a successful defamation claim, damage to a person's reputation need not be absolute and is to be assessed on 'the balance of probabilities' so to speak. In this case, the damage caused to the plaintiff's reputation may not have been as severe as it was alleged. Furthermore, it was not stated how the figure of 23,000 was calculated in this case52, which, again, lays emphasis on the fact that the courts are keen to assign liability in this area of the law.

In England/Wales, a criticism of finding an ISP liable can be found in the legislation itself, notably, the Defamation Act 1996. Indeed, the meaning

of the words 'editor' and 'author,' can unfairly establish liability. Technically, an ‘editor’ is someone having editorial responsibility, and an 'author' means the originator53, but it can be argued that the fact that this does not include a person who does not intend his statement to be published, seems slightly harsh, particularly given the 'free flow' nature of the internet.

In relation to private email, defamatory material can be deemed to exist in the form of libel as it can be assumed that a third party will read the material.54 In fact, the contents of an email are regarded as being no different to a postcard i.e. emails are not always kept between people and so they are not regarded by UK law to be of a private and confidential nature.55 On the other hand, it could be argued that access to emails is limited and so by appointing liability for defamatory content in this form some would argue that the limitations on the freedom of expression are too severe as a means of protecting another’s reputation, particularly where the email was of a one-to-one nature and was not being accessed by the ‘whole world’ so to speak.

To conclude, the USA can learn from our constitution that (where possible), ISP’s should be under more pressure to try to prevent unnecessary damage to an individuals reputation, particularly in cases where it would be so easy for the ISP’s to remove the content from their systems. The UK has learned from the US that the protection of freedom of expression is still a very important feature of democracy and has demonstrated this by limiting the full force of Article 10 of the 1980 European Convention of Human Rights, to allow criticism which some may deem defamatory, to be expressed without liability, when it is made against someone in the public domain. However, the UK has failed to address problems relating to the severe pressure placed upon ISP’s  and continues to operate a low tolerance to defamation against another.

- section 1 of the Defamation Act 1996 deals with responsibility for publication - http://www.opsi.gov.uk/Acts/acts1996/

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