In this blog I am going to describe the English law in relation to defamation and internet publications.
Section 1 of the Defamation Act 1996 provides a defence for a person who can show that, (1) (a) not the author, editor of publisher of the statement, (b) took reasonable care in relation to the publication, (c) did not know and had no reason to believe, that what he did caused or contributed to publication of defamatory statement. Under S.1(3) a person shall not be considered the author, editor or publisher of a statement if he is only involved —(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 Act extended to operators of communications system such as an internet service provider, or twitter, or Facebook and other social network side. In those systems the quantity of material posted is too high, that means that they may have limited awareness of what is being added to the system. However, where an operator receives notification of a defamatory statement, and fails to remove it promptly, it might be liable for further republication. In the case of Godfrey v Demon Internet [1999] 4 All ER 342 Godfrey, an internet service provide was accused of posting of an academic paper full of inaccuracies and errors claiming Godfrey as the author. This was a defamatory publication because would lower Godfrey’s reputation as academic and scientist. Godfrey informed ISP that he was not the author and asked them to remove the publication from the website. Demon failed to remove the posting. Court held the internet service provider was not a ‘publisher’ of material posted on a Usenet if unaware of defamatory statement. However, as soon as he had been made aware of the statement that service provider became a ‘publisher’ and could not claim under the defence under s.1 Defamation Act 1996.
Godfrey raised a problem for newspaper and other media that maintain archives of their material. Such material would normally be available on the organisation’s internet site. The court of appeal has held that a claimant may sue for libel for material published on an internet site even if the action is brought more than one year after the initial publication according to the limitation period under s.4 of the 1996 Act. This principle was held not to be in breach of Article 10 as it was not disproportionate restriction on freedom of expression. Archive maintenance did have a social utility but this was a comparatively insignificant aspect of freedom of expression. This decision was supported by the European Court of Human Rights in Times Newspaper Limited v United Kingdom (2009). It was held unanimously that a court’s finding that Times Newspapers Ltd had libelled G.L. by the continued publication on its internet site of two articles was not a disproportionate restriction on the newspaper’s freedom of expression, as guaranteed by Article 10 of the European Convention of Human Rights. In Metropolitan International Schools Ltd v (1)Designtechnica Corporation (2) Google UK Ltd & (3)Google inc. [2009] EWHC 1765 it was held that internet search engine provider not to be regarded as ‘publishing’ material located on an internet search including “snippets” which appear in response to that search. In Payam Tamiz v Google inc [2013] EWCA Civ 68 Court of Appeal held that internet service provider that allowed defamatory material to remain on a blog hosted on its platform for five weeks after it had been notified of a complaint might have become a publisher of the material. However, probable damage to claiment’s reputation over a short period was so trivial that maintenance of libel proceedings could not be justified, in which website moves to remove defamatory material is significant when deciding upon liability of website.
In the new Deformation Act 2013 introduces two new defences for online publishers. This is a recognition of the unique nature of online publication and an apparent attempt to place more responsibility on the authors of web posts, a group who (with a few notable exceptions) have until recently been fairly confident of their untouchability. Section 5 of the 2013 Act Creates new defence for website operators, who can demonstrate that they were not responsible for posting the material on their website. Defence can be defeated if C can show: (a)Not possible to identify original poster,(b)C gave operator notice of complaint,(c)Operator failed to respond according to procedure set out in regulations. Procedure:(1)C must send Notice of Complaint to website operator setting out details of defamatory post, (2)Website operator must acknowledge receipt within 48 hours, (3)Poster has 5 days to respond from day notification sent to him, (4)If Poster fails to respond website operator must withdraw post within 5 days, (5)If Poster responds consenting to removal, operator must do it within 48 hours of receiving communication, (6)If poster objects to removal website operator must pass on details to complainant.
This Section brought about the biggest changes in dealing with defamatory online posts. The aim is to introduce an efficient mechanism for dealing with comments posted by users of blogs and social networking sites such as Facebook, Twitter and Instagram. The primary purpose of these provisions is to reduce the costs in identifying an anonymous poster.
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