B2fxxx

      Thursday, March 16, 2006

 

The UK High Court, in Bunt v Tilley & Ors [2006] EWHC 407 (QB) (10 March 2006), has ruled that "an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law." What I take to be the relevant bits from the decision:

"Neither the pleaded case nor the evidence discloses any role on the part of these Defendants other than that of affording connection to the internet. On this basis, it is argued on behalf of all the corporate Defendants that the necessary ingredients for publication are missing...

When considering the internet, it is so often necessary to resort to analogies which, in the nature of things, are unlikely to be complete. That is because the internet is a new phenomenon. Nevertheless, an analogy has been drawn in this case with the postal services. That is to say, ISPs do not participate in the process of publication as such, but merely act as facilitators in a similar way to the postal services. They provide a means of transmitting communications without in any way participating in that process...

In determining responsibility for publication in the context of the law of defamation, it seems to me to be important to focus on what the person did, or failed to do, in the chain of communication. It is clear that the state of a defendant's knowledge can be an important factor. If a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue. So too, if the true position were that the applicants had been (in the Claimant's words) responsible for "corporate sponsorship and approval of their illegal activities".

I have little doubt, however, that to impose legal responsibility upon anyone under the common law for the publication of words it is essential to demonstrate a degree of awareness or at least an assumption of general responsibility, such as has long been recognised in the context of editorial responsibility...

Of course, to be liable for a defamatory publication it is not always necessary to be aware of the defamatory content, still less of its legal significance. Editors and publishers are often fixed with responsibility notwithstanding such lack of knowledge. On the other hand, for a person to be held responsible there must be knowing involvement in the process of publication of the relevant words. It is not enough that a person merely plays a passive instrumental role in the process...

In all the circumstances I am quite prepared to hold that there is no realistic prospect of the Claimant being able to establish that any of the corporate Defendants, in any meaningful sense, knowingly participated in the relevant publications. His own pleaded case is defective in this respect in any event. More generally, I am also prepared to hold as a matter of law that an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law."

It's a lucid judgement and if you can deal with 79 paragraphs of legalese, worth scanning. Mr Justice Eady's writings from the bench are amongst the most coherent of the species.

Ray 3:10 PM [ Permalink ] Make a New Post

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