Last week the Internet Service Provider Demon settled its long running internet defamation action with Dr Laurence Godfrey by agreeing to pay him £15,000 in damages plus costs reportedly estimated at £250,000. This was a landmark case in the UK, although there have been a number of similar cases in the US.
The facts of the case were clear. Dr. Godfrey was a contributor to a news group “soc.cult.thai”. Usenet newsgroups are part of the Internet but use different protocols from the World Wide Web. Originally newsgroups were used by scientists and academics to exchange information. However, as contributions to news groups can be anonymous and unmonitored (unlike chat groups where there is commonly a moderator) all manner of often less elevated material can be posted to a newsgroup. Newsgroups have long caused ISPs a number of headaches.
An anonymous contributor posted some “squalid and obscene” comments about Dr Godfrey to the “soc.cult.thai” newsgroup. Demon did not contest that the material was defamatory.
Legally, the case was pretty much over last year when Mr Justice Morland presided over a preliminary hearing and made a number of key findings:
- US law was different from UK law particularly in the area of defamation. US cases were of interest but not relevant.
- Demon was a common law publisher of the material given that it was material contained on one of its servers which was made available to the public. Demon had the capacity to remove the offending material, but elected not to do so.
- Demon could possibly have availed itself of the statutory defence in the 1996 Defamation Act that it took reasonable care and did not know that it was contributing to the publication of defamatory material. However, this defence was lost after Dr Godfrey notified Demon of the existence of the material and Demon did not remove it from the server.
Have the floodgates opened and will this lead to ISPs being bombarded with complaints and possible legal actions?
The answer is probably no, but the case does serve to highlight the problems of newsgroups. It probably also tips the scales in favour of the complainant. In other words, if an ISP hosts material on a server it controls and subsequently receives a complaint about material, the very least it will have to do is investigate the complaint and then take whatever action may be appropriate. Expect a lot more judgement calls from ISPs about what may or may not be defamatory in the coming months.