by Tony Jaffa

The Internet – not only is it changing the way journalists work but it is exercising the minds of lawyers as well.

For the purposes of libel, the Internet mostly is no different from conventional publishing – the author of defamatory material on the Web is in a similar position to his counterpart on the printed page. If the words satisfy any of the tests for defamation, the person concerned can sue the author and the publisher, who in turn can defend the claim on any of the usual grounds (e.g. justification, fair comment, privilege, etc. etc).

Nothing new here, then, and so no surprise that there have been several instances where the subjects of libellous e-mails have successfully sued. What is instructive, however, is the size of the damages – £400,000 and £150,000. The magnitude of the damages no doubt reflected the speed with which e-mails can be distributed, the large number of people who receive them, and the commercial consequences of the messages.

What is relatively new, however, is the Law’s recognition that Internet Service Providers do not fall into the traditional categories of author or publisher. Section 1 of the Defamation Act 1996 gives an extra defence to an ISP and its employees. Essentially, an ISP can defend a claim for libel if it can show it:

(a) was not the author, editor or publisher of the defamatory words;

(b) took reasonable care in respect of publication; and

(c) had no knowledge or reason to believe that what it did caused or contributed to the publication of the defamatory statement.

The first case to come before the English courts on this point – Godfrey v Demon Internet – was recently settled, just days before the trial was due to start. By the settlement, the claimant received an apology, damages of £15,000, and his costs. Mr Godfrey brought two claims against Demon because it was the owner of two newsgroups, on which two separate defamatory postings were placed by a third party. Although the settlement meant that a full trial was avoided, some of the issues were considered by Mr. Justice Morland at an interim hearing in April, 1999.

At this preliminary hearing, Mr Godfrey sought an order that the part of Demon’s Defence which was based on S.1 of the Defamation Act 1996, should be struck out. His application was successful because the judge held that even though Demon was not the publisher (and so met the first test in S.1 of the Act), it had not taken reasonable care in respect of the publication, and it knew it was contributing to the publication of defamatory material (so it failed the second and third tests).

As often happens, the result hinged on the particular facts of the case. What swung the case in Mr Godfrey’s favour was that as soon as he became aware of the posting, he sent a fax to the managing director of Demon, told him the posting was a libellous forgery, and requested that it be removed from Demon’s news server. Demon did nothing and the offending words remained available on the news server until it expired some ten days later.

It was Demon’s failure to react to the fax which persuaded the judge to decide that Demon had failed to take reasonable care, and it knew of the defamatory posting when it received Mr Godfrey’s fax, but chose to ignore it, and therefore, it could not rely on the defence created by S.1 of the 1996 Act.

So, the lesson for those involved with ISPs is clear – you may not be the author or publisher of defamatory material, but if you know about it and do not react speedily to remove it when asked to do so, you could end up on the wrong end of a libel writ.

For those who are actually authors and/or publishers on the Web, neither S.1 nor the interim decision in the Demon case change anything – you will be liable for defamatory material just as has always been the case.

And just to make life that little bit more interesting…don’t forget that the nature of the Internet means that instead of your article just being published in your own country, it may also be published in many other countries – where legal proceedings can also be brought. Accordingly, a determined litigant can go round the developed world, suing you in each country, and obtaining damages for libel from you in each jurisdiction!

Personal Footnote
A few years ago, before S.1 of the 1996 Act came into force, I was libelled by a disgruntled opponent, on a newsgroup owned by Demon Internet. When I drew the item to their attention, Demon said they were not responsible, and because the law was then unclear, I didn’t bother to pursue the point. Shame it didn’t happen a few years later; a nice little tax-free payment of damages would have been very welcome indeed!

Tony Jaffa is a full-time newspaper lawyer with Foot Anstey Sargent, of Exeter and Plymouth. To e-mail him, click here. The firm’s website is at www.foot-ansteys.co.uk

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