Liability for defamatory material on the Internet

Under the Defamation Act 1996 an author, editor or publisher may incur liability for defamation. As ISP will not be considered an author, editor or publisher if it is only the operator of or provider of access to communications systems by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

However, the ISP must have taken reasonable care to prevent the publication of defamatory statements. In a recent case, the ISP was found guilty of defamation in circumstances where it had failed to remove defamatory statements from a Usenet News Group, after having been informed of their existence. (Godfrey v Demon Internet). As a result, ISPs and site owners where, for example, they invite comments to the website should act quickly to remove any statements which are or are alleged to be defamatory.

As a result of Godfrey v Demon Internet, an ISP shut down a magazine for homosexuals for fear of being held liable for defamation. However, the owner of the site is now bringing a legal challenge to the European Court of Human Rights on the basis that English libel laws breach the right to freedom of expression and that an ISP should only be liable if it had knowledge that a statement was both defamatory and untrue or had been recklessly indifferent. This case has yet to reach the courts, however, forthcoming legislation from Europe in the form of the e-commerce and copyright directives appear to be taking a route which will relieve ISPs of liability provided that they are "mere conduits" of information, not taking steps to check or review it. This will also apply in cases of copyright infringement.

For further information, please contact John Armstrong by e-mail at [email protected] or by telephone on +44 (0)20 7367 2701.