Defamation / Reputation, Indecency / Obscenity
Camargo v. Bastos
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The High Court of England and Wales concluded that a UK-based Internet Service Provider (ISP) did not have a viable defense against a defamation action. Laurence Godfrey, a British lecturer alleged that an unknown Internet user created an obscene and defamatory posting and fraudulently attributed its authorship to him. The statement was posted on an online public forum operated by Demon Internet Limited, a UK-based ISP, which did not remove the posting for more than 20 days until its expiration date in the public forum. Subsequently, Godfrey brought a libel action against the ISP, seeking damages for the alleged defamatory statement. The High Court concluded that the ISP knew or had reason to know that the impugned statement was defamatory since the plaintiff had notified the company that he was not the true author of the statement. Yet, the Defendants chose not to remove the defamatory posting. Accordingly, the Court ruled that the company did not have a viable defense under Section 1 of the Defamation Act.
On January 17, 1997, Laurence Godfrey, a British lecturer in physics, mathematics, and computer science, protested against an alleged obscene and defamatory statement against him. The statement was posted on an online public forum operated by Demon Internet Limited, a UK-based ISP. Godfrey argued that an unknown Internet user created the posting at issue and fraudulently attributed its authorship to him.
In January 1997, an unknown individual in the U.S.A. created a post in the Newsgroup “soc.culture.thai” that was squalid, obscene and defamatory of the Plaintiff Laurence Godfrey, a resident in England. It purported to come from the Plaintiff although “Lawrence” was misspelled with a “W”. The post invited replies by giving the Plaintiff’s email address.
The posting followed a path from its originating American Internet Service Provider (ISP) to the Defendant ISP’s news server in England. The Defendant ISP carries the Newsgroup “soc culture thai” and stores postings within that hierarchy for about a fortnight during which time the posting is available to be read by its customers.
The Plaintiff sent a letter by “fax” to Mr. Stanford, the Defendant’s Managing Director, informing him that the posting was a forgery, that he was not responsible for it and requested that the Defendants remove the posting from its Usenet news server. The Defendants received the fax but the posting was not removed as requested but remained available on its news-server until its expiry on about the 27th January 1997.
The Internet company did not remove the posting for more than 20 days until its expiration date in the public forum. Subsequently, Godfrey brought a libel action against the ISP, seeking damages for the alleged defamatory statement.
Justice Morland delivered the opinion of the High Court of England and Wales.
The main issue before the Court was whether the ISP company had viable defense against the defamation action.
Under Section 1 (Responsibility for Publication) of the Defamation Act of 1996, a person may not be held liable for defamation 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.” For the purposes of the Act, a publisher is one “whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business.” Furthermore, a person cannot be considered the author, editor or publisher of a statement if he is only involved:
“(a) in printing, producing, distributing or selling printed material containing the statement; (c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form; (e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.”
The Court first held that the ISP was not a publisher of the impugned statement within the meaning of Section 1(2) and 1(3). The Court then proceeded with addressing whether the company took a reasonable care in disseminating the statement and whether it knew or had reason to know that its act caused or contributed to the publication of the defamatory statement. The ISP argued that it merely provides Internet access through which public postings are transmitted. The Court disagreed by holding that the Defendants, whenever the Defendants transmit and whenever there is transmitted from the storage of the Defendants news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the Defendants’ customers accesses “soc culture thai” and sees that posting defamatory of the Plaintiff there is a publication to that customer. [para. 33] For the Court, the ISP’s act of providing access to the defamatory statement was analogous to a “bookseller who sells a book defamatory of the Plaintiff.”
The Court further examined the ISP’s liability in light of the U.S. jurisprudence on this subject. As acknowledged by the Court, U.S. courts have traditionally taken a more protective approach towards ISPs so long as they are considered as a mere passive participant in disseminating information. For example, in Anderson v. New York Telephone Co., 35 N.Y. 2d 746 (1974), the Court of Appeals of New York held that “[i]n order to be deemed to have published a libel, a defendant must have had a direct hand in disseminating the material whether authored by another or not.” But similar to the UK case law on defamation, a distributor of information cannot escape liability if it knew or had reason to know of the defamation.
The Court concluded that the ISP knew or had reason to know the impugned statement was defamatory as the plaintiff had notified the company that he was not the true author of the statement. Yet the Defendants chose not to remove the defamatory posting. Accordingly, it ruled that the company did not have a viable defense under Section 1 of the Defamation Act.
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