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The position of Internet Service Providers (ISPs) and their responsibility for material which passes through their computer systems is and will continue to be contentious. Settled legal opinion is that Internet Service Providers can very easily become responsible for content. On the other hand settled practice, and quite possibly sensible settled practice, has been to "keep mum" in the hope somehow that the problem will go away.
The problem was acknowledged by Parliament. In essence it is as follows. English law provides that those who contribute to the dissemination of a libel are responsible, and possible equally so, along with the person who creates the libel. I can write a letter to a friend in which I commit a serious defamation. If a national newspaper takes my letter and republishes it, it is only right that the person who brings a letter which might have been read by one person to the attention of possibly many hundreds of thousands of people, can themselves become liable. It is easy to see that somebody who puts together a newspaper and decides what goes in and what does not can be liable in this way, what is less easy to see is that all those who assist in and make a profit by the distribution of the libellous material are similarly contributing to the damage done. Thus, in the days before internet, liability was often attached to distributors of newspapers. Where for example, many years ago, W. H. Smith came the conclusion that Private Eye as a magazine, could expected to contain defamatory material, because of Private Eyes litigation history, they decided that they may be liable for distribution and ceased to distribute the newspaper.
At this stage, there was the "innocent distribution" defence which was to the effect that such a person would have a proper defence if they had no reason to believe that the material they were distributing was likely to be defamatory.
This defence was felt to lack clarity, and the Defamation Act 1996 was passed to tidy up one or two points of the defamation law, but principally, and particularly in the light of the development of ISP Businesses, to define and codify the defence of innocent distribution.
The Act was welcomed by Internet Service Providers, or most of them, but some commentators, including the author, felt that in practice it would operate against their interest since the clarification did little to ease their responsibilities.
An ISP will receive electronic messages and files of various different complexions. By enlarge they have the opportunity to inspect such material, but the volume of material makes this utterly impractical. They are in a very similar position within a structure, to the newsagent. They receive matter and hand it out to all and sundry, but without any contribution themselves to the content.
The Defamation Act 1996 clarified and simplified the law and provided that such a distributor would not be liable in defamation unless and until they came into a position where they knew, or should have known, that material passing through the system and being disseminated by them, it is defamatory. The corollary is that once they do become aware of the true situation, they then have a choice either to continue to publish the document, or distribute it, or if they choose otherwise, they avoid liability by ceasing the distribution.
The position with Internet Service Providers does therefore now seem quite clear.
The case of Godfrey The Demon Internet Limited, Times April 20th 1999, addresses this issue. Mr. Godfrey had had someone publishing defamatory matter. He asked the ISP to cancel the posting and the ISP failed to do so. He sued them in defamation and they lodged a defence claiming that they were not themselves the publishers of the libel, arguing in effect, that they merely operated as electronic tubes through which the messages were sent.
The court rejected this argument, and in a reserved judgement, the court went so far as to strike out the defence. Technically the judge found that the ISP remained publishers at common law even though they were excluded under the Act for some particular purposes of the Defamation Act.
An ISP is not liable in defamation for material passing through his system, where there is no reason to know of it. He can become liable where he either knows of it, or where some special circumstance suggests that he ought to have known of it.
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