Defamation / Reputation
Johnson v. Steele
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British national John Bunt brought a defamation action against three individuals and three Internet service providers (ISPs): AOL UK, Tiscali UK, and British Telecommunications (BT). With respect to the ISPs, Bunt argued that they should equally be held liable for the publication of the offending words that were transmitted via their services.
The respective ISPs sought to dismiss the lawsuit under Article 3.4(2) of the Civil Procedures, contending that they should not be liable for mere facilitation of Internet under the Defamation Act of 1996 and the EU Directive 2000/31 on electronic commerce. The Queen’s Bench Division of the High Court of Justice held that as a matter of law “an ISP, which performs no more than a passive role in facilitating postings on the [I]nternet cannot be deemed to be a publisher at common law.” The Court further held that the ISP defendants had established a viable defense under Section 1 of the Defamation Act on the ground that the pleaded facts failed to suggest any knowing participation by the defendants in the publication of the statements.
In 2005, three individuals published defamatory statements against Bunt (complainant) by using Internet services provided by three different companies based in the UK: AOL, Tiscali, and British Telecommunications. Concerning AOL, the complainant sent two separate emails in February 2015, notifying the company that one of its customers had “committed an act of libel against [his] business.” In the first email, the complainant requested AOL identify the name and address of the person responsible for the defamatory publication. Based on the court documents, Tiscali became aware of the publication only after it was served with the defamation cause of action. BT also asserted that it did not know, and had no reason to believe that it had potentially contributed to the libelous statements transmitted or communicated through its Internet service.
In additional to suing three individuals behind the published statements, the complainant sought remedies against the ISPs, arguing that they should also be held responsible for defamation. All three companies filed motions to dismiss the lawsuit before the Queen’s Bench Division of the High Court of Justice.
Justice Eady delivered the opinion of the High Court.
The main question before the Court was whether an Internet service provider can be held liable, if at all, for a defamatory statement that was merely communicated or transmitted via the Internet services they provide.
Before discussing the extent of ISPs’ legal responsibility in defamation claims, the Court explained that ISPs are similar to postal services or telephone companies and “do not participate in the process of publication . . . They provide a means of transmitting communications without in any way participating in that process.” [para. 9] The Court then made a reference to its similar decision in Godfrey v. Demon Internet Ltd  QB 201, in which an ISP was found liable for defamation because it had knowledge that the posting communicated and stored in its news server was defamatory and that it had failed to take reasonable measures to remove it.
As a general rule, “[p]ublication is a question of fact, and it must depend on the circumstances of each case whether or nor publication has taken place.” [para. 15] Furthermore, in order to determine legal liability for publication in the context of the law of defamation, there are important factors to consider, such as “the state of a defendant’s knowledge.” [para. 21] Because “before a person to be held responsible, there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process.” [para. 23]
Applying the above principles, the evidence before the Court showed that AOL received two separate emails from the complainant. On February 13, 2005, his email expressly identified the publication of a defamatory statement by an AOL customer: “One of your (UK) customers has committed an act of libel against my business forums,” the email said. [para. 26] But the complainant stopped short of asking the company to remove the posting or suggesting that AOL was some how responsible for the publication. As such, the Court concluded that there were “no pleaded facts to suggest any knowing participation by AOL in the publication of these words.” [para. 30] As to two other ISP defendants, Tiscali and BT, the records indicated that they became aware of the postings after they were served with the complaint for defamation. Accordingly, the Court held that the companies did not knowingly participate in the relevant publications.
Next, the Court addressed the applicability of the EU Directive 2000/31/EC on electronic commerce, which defines “circumstances in which Internet intermediaries should be held accountable for material which is hosted, cached, or carried by them but which they did not create.” The Directive’s primary objective is to “create a legal framework to ensure the free movement of information society services between Member States and not to harmoni[z]e the field of criminal law as such.” Article 2(a) defines information society service as “any service normally provided for remuneration, at a distance, by electronic means and at the individual request of a recipient of services.” The Court in the present case was of the opinion that ISPs “indeed fall within the relevant definition,” and therefore, they are entitled to avail themselves of the protections recognized under the Directive. Relevant to the present case, Article 13 of the Directive prohibits Member States from imposing monetary damages or any criminal sanction against a service provider for the automatic, intermediate and temporary storage of that information, on condition that:
“(a) the provider does not modify the information;
(b) the provider complies with conditions on access to the information;
(c) the provider complies with rules regarding the updating of the information, specified in a manner widely recognised and used by industry;
(d) the provider does not interfere with the lawful use of technology, widely recognised and used by industry, to obtain data on the use of the information; and
(e) the provider acts expeditiously to remove or to disable access to the information it has stored upon obtaining actual knowledge of the fact that the information at the initial source of the transmission has been removed from the network, or access to it has been disabled, or that a court or an administrative authority has ordered such removal or disablement.”
The provision, however, does not preclude the grant of an injunction against a service provider. The Court here did not a make specific finding with respect to the provision but it expressly declined to issue an injunction, describing it as “pointless.”
The Court additionally addressed Section 1 of the Defamation Act of UK in light of the EU Directive. It acknowledged that “there could well be occasions when an ISP would be protected under the [Directive] from liability for damages following transmission of a page which had been temporarily stored for the purpose of more efficient access – and yet fail in respect of a [Section] 1 defense if publication was made of the offending webpage to subscribers after its existence had been brought to its attention.” [para. 58]
Under Section 1, a defendant in a defamation action has a defense “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.”
As previously discussed, the Court found that there was sufficient evidence showing that complainant did not effectively put AOL on notice of the defamatory publication and that the company did not have any reason be believe that it was causing or contributing to the publication. With respect to second and third required elements under Section 1, the Court viewed it is necessary to take into account a number of relevant factors, including “the extent of the person’s responsibility for the content of the statement or the decision to publish it, the nature or circumstances of the publication, and the previous conduct or character of the author, editor or publisher.” [para. 65] Considering these factors, the Court concluded that the ISPs presented a viable defense under Section 1.
Based on the foregoing analysis, the Queen’s Bench Division of the High Court of Justice dismissed the complainant’s defamation action against AOL, Tiscali, and British Telecommunications.
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