The fact that legal liability for a libellous e-mail will generally attach not only to the author but also to their employer is now well established, and many companies have implemented internal procedures and employee education programmes in an attempt to prevent libellous material being circulated.
A very recent development however, is that in March this year, the High Court ruled in a landmark decision that an Internet Service Provider ("ISP") "publishes" (for defamation purposes) and is responsible for defamatory material posted on its sites.
This historic Judgment seriously threatens the existing concept of freedom of information on which the Internet is based. The Court also decided that once an ISP has been told about a libellous posting it cannot rely on the so called "ISP Defence" under the Defamation Act 1996.
Demon Internet, one of the UK’s largest ISPs, was sued by Dr Lawrence Godfrey, an English physicist, in relation to an anonymous posting which originated in the US on the Demon network, which was alleged to be seriously defamatory of Dr Godfrey. Dr Godfrey made several requests to Demon asking for this to be removed but Demon did nothing.
The High Court Judge ruled that the traditional common law rules on publication apply equally to the Internet. There is a publication by the ISP even if it had no knowledge of the material. It is immaterial that the message may originate from outside the UK from an author who is not a customer of the ISP.
This development is significant because it potentially opens up the Internet industry at large to a very significant number of similar complaints. ISPs will not be able to bury their heads in the sand on the basis that they have not "published" libellous messages.
The new statutory defence provided by s.1 of the Defamation Act 1996 will only be available to an ISP provided that it is not the author, editor or publisher of the statement and it did not know (and had no reason to believe) that it had caused or contributed to publication of the defamatory statement. Therefore once put on notice of a defamatory publication an ISP cannot avail itself of this defence and will be liable.
For further information please contact Philippa Hayes, Trinity Court, 16 John Dalton Street, Manchester M60 8HS, UK, Tel: +44 161 830 5000
This article was first published in the July 1999 Hammond Suddards Commercial Dispute Resolution Newsletter.
The information and opinions contained in this article are provided by Hammond Suddards. They should not be applied to any particular set of facts without appropriate legal or other professional advice.
