Therefore ISP's may expose themselves to liability via editorial processes, as in the case of Godfrey. 32 Demon Internet was the main ISP in UK, whereby it incorporated usernet discussion groups. An Anonymous person made a posting posing as the victim. 33 Lawrence Godfrey them Informed the ISP and asked them to remove the material from service. Despite having the power to act, they failed to do so and the posting remained available on server until its expiry.
Proceedings for libel were made. The defence by Demon was that they did not published it, the news groups did. The defence used was that whilst they did have the technical capability to remove material, they were not in position to judge whether statement was true or not. They relied upon s. 1 of the Defamatory Act I. e. they were not the publisher of the statement complained off, they had taken reasonable care, did not know and had no reason to believe, etc.
35 They contended that they had not 'published. ' It was held that transmission of defamatory material constituted a publication of that posting to any subscriber and demon internet was not merely the owner of the public device, but had published defamatory content and so they could not rely on defence. 36 As a defence, Demon tried to argue that Godfrey had provoked the response of other users, but this argument failed, as they had actual knowledge.
37 It can be noted that whereas the US may be correct in limiting the liability of ISP's in order to deter them from regulating, in cases where they have the ability to prevent damage to a person's reputation, perhaps they could be under more pressure to prevent such an occurrence. However, the freedom of expression in the US seems to outweigh this argument. Some would argue that the UK has, to a certain extent, achieved the right balance between protecting one person's reputation and protecting another's freedom to express themselves.
Indeed, in the case of Reynolds,38 it was stated that an action cannot be brought be city council/local authorities. The House of Lords in the UK has moved from the concern of the private reputation of others towards democracy and truth. 39 Therefore, the encouragement of freedom of expression has been increased in the UK. Perhaps even the UK has learned something valuable from the US approach.
Indeed, whilst Article 10(2) of the 1980 European Convention of Human Rights40 limits freedom of expression, the limits of acceptable criticism are wider as regards to politicians and people in the public domain as this category of persons open themselves up to close scrutiny, hence a greater tolerance to defamatory statements in the UK will be permitted. However, there is no defence where a statement is directed personally towards a politician I. e. this may constitute a defamatory statement.
41 Furthermore, the defendant has three other defences available with regards to defamatory substance that has been accessed on the internet. 42 Firstly, if the defendant can prove that his/her comments were the truth and the defendant can provide evidence, then the material will not be considered to have been defamatory in nature, Secondly, the defendant may make a claim of fair comment if the matter commented upon was one of public interest e. g. if it was related to state activities etc.
Thirdly, the complicated defence of privileged occasion can be used in the form of absolute or qualified privilege. 43 8. Criticisms of assigning liability to ISP's: The greatest difficulty for the common law systems within the UK and the US can be seen in the liability of ISP's for defamatory statements published by third parties who use their systems. Juries are instrumental to the outcome of proceedings. They have a two-fold role. 44 Firstly, they must decide upon the natural and ordinary meaning of concepts.
And secondly, whether material is defamatory. Juries may not understand meaning between individuals. The Godfrey45 case in the UK had a chilling effect on free speech. Service providers in the UK have no option but to remove and defamatory substance. Concern can be seen in the argument that IPS's are required to act as the defendant, judge and jury all at same time once notice has been provided. 46 There is also concern that international companies may use the Defamation Act to silence fair comment arguments.
In 2002, there was an inquiry at law commission level named; defamation and the internet48 which observed that ISP'S in the UK were being tactical targets and several reforms were suggested one of which was that ISP's should be taken out of chain of liability. 49 However, this did not lead to a change in the law or further action. Within England and Wales, it can be argued that assigning liability to ISP's is unjustified in certain circumstances.
The case of Rindos v Hardwick50 demonstrates that where defamatory substance is published, it is assumed that it has been accessed i. e. limited proof is required. Although this is an Australian case, the approach used is similar to that in the UK and so warrants our attention Indeed, in this case, damages were assessed on the basis that 23,000 people may have viewed the material i. e. they had access to 'science anthropology. '51 To digress slightly, the law of tort states that proof of damage must be established for a claim in negligence, whereas for a successful defamation claim, damage to a person's reputation need not be absolute and is to be assessed on 'the balance of probabilities' so to speak.
In this case, the damage caused to the plaintiff's reputation may not have been as severe as it was alleged. Furthermore, it was not stated how the figure of 23,000 was calculated in this case52, which, again, lays emphasis on the fact that the courts are keen to assign liability in this area of the law. In England/Wales, a criticism of finding an ISP liable can be found in the legislation itself, notably, the Defamation Act 1996. Indeed, the meaning of the words 'editor' and 'author,' can unfairly establish liability.
Technically, an 'editor' is someone having editorial responsibility, and an 'author' means the originator53, but it can be argued that the fact that this does not include a person who does not intend his statement to be published, seems slightly harsh, particularly given the 'free flow' nature of the internet. 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. 54 In fact, the contents of an email are regarded as being no different to a postcard i.
e. emails are not always kept between people and so they are not regarded by UK law to be of a private and confidential nature. 55 On the other hand, it could be argued that access to emails is limited and so by appointing liability for defamatory content in this form some would argue that the limitations on the freedom of expression are too severe as a means of protecting another's reputation, particularly where the email was of a one-to-one nature and was not being accessed by the 'whole world' so to speak.
To conclude, the USA can learn from our constitution that (where possible), ISP's should be under more pressure to try to prevent unnecessary damage to an individuals reputation, particularly in cases where it would be so easy for the ISP's to remove the content from their systems.
The UK has learned from the US that the protection of freedom of expression is still a very important feature of democracy and has demonstrated this by limiting the full force of Article 10 of the 1980 European Convention of Human Rights, to allow criticism which some may deem defamatory, to be expressed without liability, when it is made against someone in the public domain. However, the UK has failed to address problems relating to the severe pressure placed upon ISP's and continues to operate a low tolerance to defamation against another.