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ISPs and Defamation - Regulation Alternatives

There is controversy over the liability of Internet Service Providers (ISPs) in England for defamation in postings. They collect these via the Usenet system and make available to their customers. At present, English law says that they are not responsible for defamatory material unless (broadly) they have reason to believe, acquired in any of several ways, that a posting may be defamatory. Once 'on notice' in this way, the ISP either removes the article, to stop further distribution, or allows it to stay, and becomes responsible for further copies collected.

The law was relaxed by the Defamation Act 1996. There had previously been an accepted defence under the law that the defendant was guilty only of 'innocent dissemination.' To establish this he had to show that he had no access to the material being distributed, and had no reason to think that the material contained anything defamatory. The Act to some extent codified the defence, and extended it. The extension was, however, apparent more than real. The law was altered in only a small way.

It should be noted that the Act also extended the protection available to printers of material. Previously a printer had, in effect, been liable as was the original publisher. Under the new Act, a printer can now take advantage of the defence formerly available only to the newsagent. The difference is that a printer receives one copy of a text, and creates many copies from it. A newsagent (or postman or telco), distributes what he receives on a one to one basis - he spreads the libel but does not magnify it.

This is clearly seen to be (a) inconsistent with the general run of Usenet expectation, and (b) potentially expensive for ISPs. ISP's might look forward to many hours checking silly allegations of defamatory material. If the present system is not appropriate, then what might be?

The first apparent alternative is that an ISP can claim complete immunity at law. This is usually called, misleadingly, the 'common carrier' element. There is an almost racial memory of an ideal time many years ago, when there were common carriers of this or that . Many many years ago, an individual might find himself in circumstances where there was only one supplier of a particular necessity. If that supplier chose not to supply him, then he would have nowhere else to go. With only one Inn in a village, if the Innkeeper could chose not to put up a traveller, the traveller might die. The law therefore imposed an obligation on that supplier to make the supply, without discrimination save only as to the ability of the customer to pay. In return, he was given a peculiar status, that of 'common carrier', or similar. He was forgiven for any legal consequences which might follow from providing the service.

Whilst fascinating historically, it must also be noted that such carriers could still find themselves with liability where they knew of the unlawful nature of the material they carried.

In the present day, 'common carrier' status applies now only in US law. It has virtually disappeared in English law. In any event, the idea just does not translate for the ISP. The ISP is not obliged to carry any particular item. He has no monopoly. The ISP also does not merely carry information, he provides a facility for its infinite multiplication.

It seems to me that ISPs' have a further alternative. It will be unpopular with civil libertarians, but in essence they might agree not to carry, or distribute, material for which neither they nor any other service provider has identified the origin. It would never be, by any means perfect. It would provide half an answer, and there would be many holes, but it seems to me the best the ISPs can do. It may not be enough. This may happen in any event as a result of a European initiative.

It is just possible to argue that as long as the ISP can point the finger of blame to an identifiable individual, that he can argue that he should not be responsible for what is said. It is not arguable to suggest that the ISP can both distribute the anonymous posting, and avoid any responsibility for it.

Important: Please note that our law-bytes are retained for archival purposes only. The law changes, and these notes are often, now, out of date. You must take direct advice on your own personal situation and the law as it currently stands.
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Copyright and Database Rights: David Swarbrick 2012
18 October 2013 http://www.swarb.co.uk/lawb/defISPsAlt.shtml 164 18 October 2013