Factual and Procedural Background
The Plaintiff, a lecturer in physics, mathematics, and computer science residing in England, initiated proceedings by summons seeking to strike out parts of the Defence on the grounds that they disclosed no sustainable defence. The Defendant is an Internet Service Provider (ISP) operating in England and Wales. The dispute concerns a defamatory posting made on a Usenet Newsgroup ("soc.culture.thai") on 13th January 1997, originating from the United States and disseminated through the Defendant's Usenet news server in England.
The posting was squalid, obscene, defamatory, and a forgery purporting to be from the Plaintiff. On 17th January 1997, the Plaintiff notified the Defendant's Managing Director by fax that the posting was defamatory and requested its removal. The Defendant admits receipt of the fax but did not remove the posting, which remained accessible until its automatic expiry around 27th January 1997. The Plaintiff claims damages only for the period after the Defendant had knowledge of the defamatory posting, i.e., after 17th January 1997.
Legal Issues Presented
- Whether the Defendant ISP was the publisher of the defamatory posting at common law and under the Defamation Act 1996.
- Whether the Defendant can avail itself of the defence under Section 1 of the Defamation Act 1996, specifically the defence of innocent dissemination.
- Whether the Defendant's failure to remove the defamatory posting after receiving notice affects the availability of the Section 1 defence.
Arguments of the Parties
Plaintiff's Arguments
- The Defendant published the defamatory posting by storing and disseminating it via its Usenet news server.
- After receiving notice on 17th January 1997, the Defendant knew of the defamatory content but failed to remove the posting, thus losing the protection of the innocent dissemination defence.
- The Defendant's role is analogous to that of a bookseller or distributor who is responsible for publication when knowingly allowing defamatory material to remain accessible.
Defendant's Arguments
- The Defendant contends it was not the publisher of the defamatory posting at common law and thus there was no publication.
- The Defendant relies on Section 1 of the Defamation Act 1996 as a modern equivalent of the common law defence of innocent dissemination.
- Comparative American authorities suggest that service providers acting passively or as distributors without editorial control should not be liable for defamatory content.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Day v. Bream (1837) 2 Moody & Robinson 54 |
Strict liability for publication of libel by delivery of defamatory material, with burden on defendant to prove ignorance. |
Used to illustrate that delivery of defamatory material constitutes publication even if the publisher is ignorant of contents. |
| Pullman v. Hill & Co [1891] 1 Q.B. 524 |
Definition of publication as making defamatory matter known to a third party. |
Supported the principle that showing a defamatory letter to a third person constitutes publication. |
| Emmens v. Pottle (1885) 16 QBD 354 |
Disseminators of defamatory material are liable if they know of the libel. |
Confirmed liability depends on knowledge of defamatory content. |
| Byrne v. Deane [1937] 1 K.B. 818 |
Publication can occur by refraining from removing defamatory matter, depending on circumstances. |
Applied to assess whether failure to remove defamatory posting constituted publication. |
| Weldon v. "The Times" Book Co. Ltd (1911) 28 T.L.R. 143 |
Bookseller liable for publication of defamatory books sold. |
Used as analogy for ISP's role in distributing defamatory postings. |
| Vizetelly v. Mudie's Select Library [1900] 2 Q.B. 170 |
Circulating library liable for defamatory books lent to subscribers. |
Supported analogy of ISP as distributor liable for defamatory material. |
| Bottomley v. F.W. Woolworth (1932) 48 T.L.R. 530 |
Distributor liable for defamatory magazine containing libel. |
Further analogy for ISP liability in distribution of defamatory content. |
| Sun Life Assurance v. W.H. Smith (1934) 150 L.T. 211 |
Distributor liable for defamatory posters displayed. |
Reinforced distributor liability principle. |
| Anderson v. New York Telephone Co. [1974] 35 N.Y. 2d 746 |
Telephone company not liable as publisher where role is passive equipment leasing. |
Distinguished from Defendant's active role in storing and disseminating postings. |
| Cubby v. CompuServe 776 F.Supp. 135 (S.D.N.Y. 1991) |
Computer service as mere distributor not liable absent knowledge of defamation. |
Noted but found marginal assistance due to differing US approach. |
| Stratton Oakmont v. Prodigy [1995] N.Y. Misc. Lexis 229 |
Electronic bulletin boards may be publishers if exercising editorial control. |
Distinguished from Defendant who did not exercise such control. |
| Zeran v. America Online [1997] 129 F3d 327 |
US federal immunity for service providers from publisher liability under Section 230 CDA. |
Rejected as inconsistent with English law and purpose of 1996 Act. |
| Lunney v. Prodigy Services [1998] WL 999836 (NYAD 2 Dept) |
Service provider not liable absent proof of knowledge of falsity; qualified privilege applies. |
Found not to assist Defendant as English common law differs. |
Court's Reasoning and Analysis
The court first identified the relevant statutory framework under the Defamation Act 1996, particularly Section 1 which provides a defence for persons who were not authors, editors, or publishers of defamatory statements, who took reasonable care, and who did not know or have reason to believe they contributed to publication of defamatory material.
The court found that the Defendant was not the publisher in the traditional sense at the time of initial posting under Section 1(2) and (3), thus satisfying the first limb of the defence. However, the Defendant's knowledge of the defamatory posting after receipt of the Plaintiff's fax on 17th January 1997 and their failure to remove it meant they could not meet the second and third limbs of the defence—taking reasonable care and ignorance of contribution to publication.
The court relied on statutory interpretation, parliamentary debate, and a consultation document explaining the defence of innocent dissemination, emphasizing that the defence does not provide absolute immunity where the defendant knew or ought to have known of the defamatory nature of the material.
Applying common law principles, the court analogized the Defendant's role to that of a bookseller or distributor who is liable if they knowingly allow defamatory material to be accessible. The court rejected the Defendant's argument that it was merely a passive conduit, noting the Defendant's active choice to store and disseminate the postings and ability to remove them.
American authorities were considered but found to be of limited assistance due to significant differences in defamation law and policy, especially the broader immunities granted to service providers in the United States which are not reflected in English law.
Holding and Implications
The court held that the Defendant ISP published the defamatory posting and, having knowledge of its defamatory nature from 17th January 1997, cannot avail itself of the defence under Section 1 of the Defamation Act 1996. Consequently, the Plaintiff's summons to strike out parts of the Defence succeeds.
The court made no definitive ruling on the Defendant's application to amend the Defence but indicated it was likely to succeed. It also suggested that any damages awarded to the Plaintiff based on the proposed Amended Defence would likely be very small.
No new legal precedent was established; the decision primarily confirms the application of established principles regarding publication and the limits of the innocent dissemination defence in the context of Internet service providers.