An injunction is a court order which requires someone either to do something, or to stop doing something. Anyone who breaches an injunction risks criminal sanctions. Injunctions are commonly made to prevent breaches of confidence.
An injunction can be served on individuals or companies who are not parties to the proceedings, making them aware of the injunction. In the “Spy Catcher” case, it was established that any publisher could be in contempt of court if it published confidential information knowing that it was forbidden by an injunction, even if the injunction was obtained against another publisher.
In July of this year, an injunction was obtained on behalf of Jon Venables and Robert Thompson restraining “any person with notice of this order” from “publishing or causing to be published … by means of any … public computer network” anything which would identify them. Demon Internet made an application to modify the order to take account of the particular danger which it might face (as would any ISP) of breaching the order either by material actually placed on its servers or where its servers provide access to material forbidden under the terms of the injunction.
For ISPs there is a significant distinction between material provided by third parties and hosted on a server controlled by the ISP, and material on third party websites consisting of millions of web pages to which the ISP merely provides access.
Where the ISP is the host, it is able to exercise control because of its power to remove the offending material from the server. The words of the original order place the ISP at risk if “publishes or cause to be published” offending material. It is more than likely that “publishing” or “causing to be published” takes place if the offending material is hosted on one of its servers – this was the line taken in the Godfrey defamation case, which co-incidentally also involved Demon Internet, and the ISP was found to be potentially liable once it had been notified of the existence of the offending material.
On the other hand, it is less certain that merely providing access to offending material on third party websites, whether the ISP is aware of the existence of such material or not, amounts to “publishing” or even “causing to be published”.
The revised order applicable to ISPs was doubtless intended both to clarify their position and make it less likely that they would find themselves in breach of the order. However, the revised provisions may have imposed a more stringent obligation on the ISP, which cannot now avoid liability if:
- it knew (or knew that it was likely) the material had been placed on its servers or could be accessed via its service; and
- it had failed to take all reasonable steps to remove the material from its servers or to block access to the material.
The revised order does not change the position with regard to the issue of ISPs hosting offending material on one of its own servers. However, in relation to access to material on third party websites the terms of the revised order now oblige an ISP to take all reasonable steps to block access to offending material, including material not only that it knew about, but material that it ought reasonably to have known about. Accordingly, the position for ISPs has certainly been clarified by this order, but it is questionable whether it has been eased.