Compare and contrast the liability of Internet Service Providers in England and Wales and the United States of America in relation to defamation. 1. Introduction: The object of this essay is to compare and contrast the varying situations whereby the criminal systems in England/Wales and the US are prepared to appoint liability to their service providers. Firstly, it will focus on the actual functions and characteristics of internet service providers so that it will become apparent which types of service providers pose the biggest threat to the reputation of others.
The essay will then examine exactly what the offence of defamation entails i. e. what the plaintiff must prove for a successful claim. It will then discuss which areas of the internet are most susceptible to defamatory material being published. It will then seek to demonstrate that the UK has, at its main concern, the protection of reputation i. e. it places significance on the protection of privacy, whereas the US constitution is more concerned with the protection of the freedom of expression/freedom of speech.
It will attempt to show this by comparing and contrasting the case law, legislation and available defences in both jurisdictions. Finally, the essay will look to wider issues in an attempt to highlight the problems experienced when assigning liability to ISP's, and also, why appointing liability to these ISP's may not be the way forward. 2. The role and functions of Internet Service Providers: ISP's differ in nature in different countries, but the primary concern of Internet Service providers is to provide internet access to its users.
ISP's can take various forms i. e. Individuals can access the internet via commercial entities, or even within the academic field such as ISP's for universities (non-commercial). 1. 3. What is Defamation? 'Defamation is the publication of a statement which reflects on a person's reputation and tends to lower him in the estimation of right-thinking members of society generally or tends to make them shun or avoid him. '2 Thus, defamation is primarily concerned with the protection of reputation and has the remedy of damages available to plaintiff's.
For the purposes of this essay, I will be considering defamation in the field of libel, due to the permanent nature of any publication made available over the internet. 3 4 Which areas of the internet is the majority of defamatory substance published? Both in England and the United States, defamation on the internet can occur via numerous forms. Emails may contain defamatory statements, along with e-mails posted to Usenet discussion groups, electronic journals and WWW pages.
Moreover, as the internet has evolved, there is now the possibility for almost any user of the internet to publish web pages, enter into discussion groups as well as communicating through emails. 4 These days, all internet users are potential publishers of defamatory statements. 5. How does civil liability for defamation arise with regards to ISP's within: (I) England and Wales? Due to the crucial role they have, historically, ISP's Have been targeted for law suits (also in the field of copy right as well as defamation).
5 Liability is notice-based in England, thus whilst ISP's are not required to police their own service, if they are notified of the presence of any defamatory substance, they are under an obligations to remove that content, otherwise they will be held liable. 6 Civil liability can arise very easily under UK law given our eagerness to safeguard the protection of privacy. 7 In relation to private email, defamatory material can be deemed to exist in the form of libel as it can be assumed that a third party will read the material.
In England and Wales, in order to succeed in an action for defamation, the plaintiff must prove that; the statement was defamatory; that it referred to him; and finally; that the defendant published it to a third party. 9 As defamation is focussed on the protection of one's reputation; any civil liability relies upon the actual publication of the defamatory material. 10 This can be demonstrated in the speech of Lord Esher M. R. in Hebditch v MacIwaine; 'The material part of the cause of action in libel is not the writing, but the publication of the libel. '11 (ii) United States of America:
Contrary to UK law, the US does not place such a high burden on the responsibilities of ISP's. The legislation in the form of the US Communications Decency Act, represents their attempts to regulate defamatory material. 12 Section 230(c)(1) states that ; 'No provider or user of an interactive computer service shall be treated as the publisher… of any information provided by another information content provider. '13 The structure and wording of the Communications Decency Act, created an immunity for internet service providers, whereas the UK legislation refuses to do so.
The USA is interesting because it provides a complete contrast to the UK law and provisions. Indeed, US service providers have immense protection with regards to third party publications. Originally, the law in the US centred around the CompuServe case14, whereby the defendants were deemed to be the distributors, rather than the publishers of the defamatory material, merely on the basis that they had no knowledge of the defamatory substance. 15 The subsequent Stratton16 case illustrates how in the US, the ISP's have to actually take editorial control over the substance before they will be held responsible.
However, in the UK, the ISP's are under more significant pressure. A modification to the US law was seen in Lunney v Prodigy17, where it was stated that no provider or user shall be held liable for any material taken in good faith and that ISP's should be seen as conduits rather than content providers. 18 The argument that the US does not have its main concern with the protection of reputation can be seen in the important case of Zeran19, which is of particular note given the nature of the facts of the case.
The plaintiff was a victim of a malicious hoax, whereby death threats and threatening calls were made. 20 Despite the fact that AOL had been notified of the defamatory content and were negligent in the sense that they did not remove the material, the courts supported AOL due to the plain language of section 230, hence AOL attained a federal immunity. 21 The mere fact that the material originated from a third party was a good enough reason to divert liability. We can contrast the case of Zeram to the UK case of Godfrey v Demon22 due to the similarity of the two cases I.
e. they both gave notice to the ISP's. However, under UK law, liability of the ISP was achieved under section 1 of the Defamatory Act 1996. Similar cases under US law include that of Drudge23, and the worrying aspect of this case was that AOL were given totally immunity as no distinction was made between a publisher and a distributor. 24 Although the US doesn't want to deter providers from regulating, perhaps, in extreme cases such as these, ISP's should still have some responsibility for their conduct and what they do or don't do so to speak.
Moreover, the first amendment of the US Constitution provides stronger protection of the freedom of expression (arguably at the severe expense of the protection of reputation). 25 Whilst the 'deep pocket' arguments doesn't work out in the USA, the fact that the victim must identify the person who posted the material in order to receive relief for the damage caused to their reputation, seems a little unfair, particular given the vast nature of the internet and the extreme difficulties that may be experienced in trying to locate the perpetrator.
EU Policy is in line with UK policy in the form of the e commerce directive, which refers to ISP liability with regard to publishing by 3rd parties. 26 The EU e directive regulations of 2002 were implemented into UK law which have similar in wording to section 1 of the Defamatory Act, the only difference being, that these regulations applied to copy right and child pornography, as well as defamation. Whilst ISP's are required to remove content which they are given notice about, articles 12, 12 14 and 15 of the EU directive states that they have no obligation to monitor or police their users.
27 So, the UK does provide some leniency towards the conduct of ISP's. Later on in the essay, I am going to point out some of the flaws of both the US and UK approaches in an attempt to learn how both constitutions can learn from each other. 6. Similarities between England and the US in appointing liability. By comparing how the two jurisdictions appoint liability, it has become apparent that difficulties arise in trying to find an adequate balance between the protection of reputation and the right of others to express themselves.
However, in areas of public interest such as within the political field, there has been some shared consensus as to why in certain circumstances, the liability of ISP's should be minimised. This can be seen in the US case of New York Times v Sullivan28 and the recent decisions in the UK cases of Derbyshire County Council v Times Newspapers29 and Reynolds v Times. 30 In all three cases, concerns for the private concerns of individuals were outweighed by the interest in seeking democracy and truth.
Since this is consistent with US traditions in their liability appointing process, it can be assumed that the UK is beginning to conform to principles protecting free speech, and hence is no longer primarily concerned with merely protecting the reputations of private individuals in all circumstances. The UK has shown willing to be flexible with its approach to finding liability and therefore shares some of its practices with the US.