By Steven | February 18, 2013
The answer now appears to be: “yes, after they’ve been notified”.
The English CA has just delivered judgment in the appeal against Eady J’s decision in Tamiz v Google. In that case, Eady J had continued a movement away from what seemed to be the first-principles position: that ISPs hosting blogs are publishers at common law, and therefore prima facie liable for any defamatory content posted by those whose content they host - at least after they have been notified of the defamatory content.
Eady J had held that the position was not so clear cut. It all depends on how much knowledge the ISP has of the content and its potential illegality and on how much control it exercises over that content; the Blogger platform (owned by Google) really exercises very little control over its bloggers; and it’s odd for a letter claiming defamation to convert someone into a publisher when they weren’t before.
The Court of Appeal doesn’t quite agree. The issue is whether the ISP “might be inferred to have associated itself with, or to have made itself responsible for, the continued presence of the material on the blog and thereby to have become a publisher of the material.” This isn’t a bull’s roar from Eady J’s analysis, but the CA’s conclusion is different. Where Eady J said Blogger was like a wall someone had plastered with grafitti, the CA likened it instead to a notice board in a clubroom. The CA is readier to accept the argument that, after it has been notified and been given a reasonable time to take action, the ISP can be said to have acquiesced in the publication (and therefore be treated as a publisher) if it does nothing about it.
This is a significant ruling, with wide potential ramifications. It is probably the law that a letter to an ISP about material it is merely hosting (including comments in a thread on a website it does no more than host) can fix responsibility on the ISP for that material. (It would be wise for anyone writing that letter to set out exactly what’s defamatory, why it’s defamatory and why it’s claimed to be false, but it’s not at all clear how much detail is required under the CA’s ruling).
Some other signficant points:
– this decision was about whether the UK court should decline jurisdiction. The CA only found that the case was arguable (ie that Google was a publisher), when Eady J had found that it wasn’t. Still the ruling on this point is in keeping with recent cases in Australia, and also some obiter in the NZ case of A v Google. It’s very likely that it reflects the law here.
– the CA was happy to accept Eady J’s conclusion that many of the comments at issue were mere “vulgar abuse” and therefore not defamatory. There seems to be more scope for such arguments in an online context.
– The CA accepted Eady J’s finding that damage caused by the posts that were arguably defamatory was trivial, given that the blogger had taken them down after five weeks. Thus the case was not worth the candle, and the CA agreed that permission should be refused for it to continue because there was no “real and substantial tort”. The same result may be reached in NZ in a strike-out application, it is to be hoped.
– Google took about 5 weeks to act on the complaint in Tamiz. The CA said this was arguably too long. But that suggests that a couple of weeks probably won’t be.
– The case also suggests that ISPs will be considered “processors” or “distributors” under s21 of NZ’s Defamation Act (which relates to the defence of innocent dissemination). That means they can escape liablity if they can show that:
(a) that [the ISP] did not know that the matter contained the material that is alleged to be defamatory; and
(b) that [the ISP] did not know that the matter was of a character likely to contain material of a defamatory nature; and
(c) that [the ISP’s] lack of knowledge was not due to any negligence on that person’s part.
That will almost always be the case before the ISP is notified that it’s hosting defamatory material. But once that notification arrives, the ISP’s role in the continuing publication is likely to be very problematic - it can no longer say, for example, that it doesn’t know that the website it’s hosting doesn’t contain defamatory matter.
– The upshot is that ISPs are going to have to take action when they receive letters claiming defamation, or risk being held liable for it. That action might include ordering the material to be removed, or seeking an indemnity from the blogger (assuming the blogger has the resource to meet it), or checking out the claim (which may involve seeking a legal opinion) and perhaps standing by their blogger, or requiring their blogger to provide evidence supporting their blog (or perhaps a reputable legal opinion supporting it). You can see that none of this is very attractive to ISPs. On the other hand, it has probably been the position in NZ for years, and there seem to be few cases on it. I’m not sure there’s been a swarm of legal letters aimed at ISPs, and I rather doubt that this case will make much difference.
Topics: Defamation |
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