A whole chain of people may publish and republish a defamatory remark. This may include a person who makes and repeat the remark, publishers and printers. Traditionally, it may also include wholesalers, shopkeepers and suppliers. The internet and information technology increased exponentially, the possibilities for republication.
The common law recognised that certain people who technically publish a defamatory statement, should not be held responsible for it, provided that they act innocently and without knowledge of the defamation. At common law, a distributor, retailer or lender was not liable if he could show that he was not aware that the material contained a libel and was not negligent in this regard. The onus was on him to prove that he was not negligent.
The issue of innocent publication has assumed greater significance in the internet age. A gross defamation may be made which spreads worldwide in a couple of moments, causing grave damage to a person’s reputation. internet service providers have certain protections under EU Directive.
Makers and Distributors
Defamation law distinguishes between persons who publish and persons who distribute the material. Persons who publish defamatory material are usually unconditionally liable. Distributors have a lower level of liability. Generally, their obligations cease provided that they remove the material, once the alleged defamation has been brought to their attention or they become aware of it.
If discussions are hosted on web blogs, questions arise as to whether the publisher of the website may be legally liable for the content. Issues may arise in relation to liability for publications by employees.
Under private international law rules, a person may be generally sued, either where he resides or where the harm has occurred. In the case of defamation, legal action may be brought against a publisher where it is established or where the damage to reputation has been suffered. The above rules apply within the EU. Slightly different rules apply in respect of dealings outside the EU. See the section on conflict of laws and civil wrongs.
Defence of Innocent Publication I
The Defamation Act provides for the defence of innocent publication. It is a defence for the defendant to prove that he or she was not the author or publisher of the statement concerned, that he took reasonable steps in relation to its publication and did not know and had no reason to believe that the publication was defamatory.
A person shall not be considered to be the author, editor or publisher of a statement
- if he was responsible for printing, production, distribution and selling only of printed material;
- in the case of a film and sound recording, that he was responsible for processing copying, distribution, exhibition or selling the film or recording;
- In relation to an electronic medium on which the statement is recorded or stored, that he is responsible for processing, copying, distributing or selling only, of the electronic medium or was responsible for the operation or provision only of the equipment system or service by which the statement would be capable of being retrieved, copied, distributed or made available.
The court, in determining whether the person took reasonable care or had reason to believe that he or she caused or contributed to the publication of the defamatory statement, shall have regard to the extent of the person’s responsibility for the content of the statement and the decision t0 publish it, the nature of the circumstances of the publication and the person’s previous character or conduct.
Defence of Innocent Publication II
The person must prove that he is neither the author, editor, or publisher. The author is usually the person from whom the statement emanates or originates. An editor is a person who has control over content. The editor will generally have input and control over the content. Some persons who are nominally editors, may not have any control over content.
The defence requires that the intermediary should not be involved in monitoring, censoring, amending or controlling the publication. The privilege is lost if the person acts negligently or does not act with reasonable care. If a distributor, vendor, etc. has reason to believe that any publication may contain defamatory material, the requirement for reasonable care may require that he takes steps to examine it.
What is required by reasonable care, will depend on the circumstances. Unless there is a reason to believe that the publication may be defamatory, there is no need to examine the particular material. Where, however, it has been publicised that particular material contains defamatory material, it may be negligent to continue to distribute.
The nature of the publication itself may be relevant. Where a publication is known to contain libellous material, the vendor or distributor may be obliged to do more to avoid being classed as negligent, and accordingly, lose the benefit of the defence. Where a warning is given that material being distributed or sold is libellous, the protection may be lost out, if the defendant is negligent in the circumstances.
At common law, the distributor, retailer etc. was not liable, unless he knows or ought to have known that the newspaper or periodical contained a libel, which could not be justified. If he reasonably believed the statement to be true, justified or privileged, he was afforded protection. The statutory wording now governs the position, so that the common law position has been modified.
Internet and other Intermediate Service Providers
Case law prior to the below Directive, suggested that an ISP could be liable as a publisher. Later cases confirmed that if the ISP played a passive role, then it would not be deemed to be a publisher. It has been held that Google’s ordinary functions, do not make it a publisher at common law. Different considerations arise where an entity hosts or has some element of control over the material.
An Irish court has held a chatroom with editorial control, to be an intermediary service provider for the purpose of the legislation. Accordingly, it had no liability where it did not have actual knowledge of the publication. The protection of the legislation has been afforded to a news organization in relation to comments on a news article, in circumstances where the organisation did not have knowledge of the defamatory content.
The ultimate position will depend on the circumstances and on the nature of control over the website. If the operator of the site goes beyond storage and hosting, the immunity may be lost. If the site is moderated, the protection of the legislation is unlikely to be available.
EU Directive Protecting ISP
The EU E-Commerce Directive contains a number of provisions which protect internet service providers, which are mere conduits. An intermediate internet service provider (ISP), is not liable for information transmitted in, or for the provision of access to, a communication network if it has been provided by a recipient of the service, provided that following conditions are complied with
- the ISP did not initiate the transmission;
- the ISP did not select the receiver of the transmission and
- did not select or modify the content or information contained in it.
The transmission and provision of access to a communications network include automatic, intermediate and transient storage of information, in so far as it is for the purpose of carrying out transmission of the network and provided that the information is not stored for any period longer than reasonably necessary.
An ISP provider is not liable for the automatic, intermediate or temporary storage of information which is performed to make the system of onward transmission more efficient.
Intermediaries and Internet Service Providers
The position in respect of internet service providers and various online intermediaries has not been definitively decided. Internet service providers are unlikely to be deemed publishers, for the purposes of defamation law. Difficult questions of interpretation arise as to whether and to what extent groups which hold discussions, are distributors or publishers. Distributors are not generally liable unless they are negligent. However, publishers are strictly liable.
An intermediary (internet) service provider is not liable for information transmitted in a communication network if the information has been passively carried (and no more). Conditions apply. It is a condition that the intermediary service provider did not initiate the transmission, did not select the receiver of the transmission and did not select or modify the information contained.
There is a specific exemption for caching. Caching involves creating temporary copies of a web page. This facilitates a user using the same content, which can be provided by the local copy made by the internet service provider, rather than going back to the source page on the occasion of each subsequent re-use of the page.
The intermediary service provider is not liable for the automatic, intermediate and temporary storage of information for the sole purpose of making more efficient, its onward transmission to other users of the service upon their request. Certain conditions apply. In particular, the intermediary service provider must not modify the information and must comply with certain rules and industry practices.
It must act quickly in order to remove and disable access, once it acquires actual knowledge of the fact that the information from which it has sourced, has been removed, had access disabled or if a Court or administrative authority has ordered its removal or disablement.
Passive Providers and Mere Conduits
Intermediary service providers providing hosting services enjoy certain exemptions. This covers the storage of information, which has been provided by the service recipient. The hosting provider will not be liable for information stored, provided that it complies with certain conditions.
It must not have actual knowledge of the unlawful activity concerned and must not be aware of facts or circumstances, from which the unlawful activity is apparent. Upon obtaining such knowledge or awareness, it must act quickly to remove or disable access to the information.
The exemption applies to passive service providers. Intermediaries and operators which edit or control the content may not qualify for the exemption. Bodies qualifying for the exemption may be deemed to become actually aware of circumstances if they become sufficiently prominent. The exemption does not apply where the service recipient is acting under the control of the intermediate service provider.
Internet service providers who are mere conduits, or who provide caching or hosting services have an obligation to monitor content. They may be obliged by EU states to notify the public authorities of illegal activity.
Conditions of ISP Immunity
The intermediate service provider is not liable, provided that it
- does not modify the information;
- complies with conditions relating to access;
- complies with the rules regarding the updating of information that has been specified in a manner widely recognised or used in the industry
- does not interfere with the lawful use of technology widely recognised or used by the industry, to obtain data on the use of information and
- acts expeditiously to remove or disable access to the information it has stored, on obtaining actual knowledge of the fact that the initial source of the transmission has been removed from the network, where access has been disabled or where a court or administrative authority has ordered its removal or disablement.
Courts may make orders against ISPs requiring it not to infringe or to cease infringement of legal rights.
ISP Defence Hosting
An ISP provider acting as a host which stores information provided by a recipient of the service is not liable for information stored at the request of the recipient. This is provided the following conditions are complied with;
- the ISP does not have actual knowledge of the unlawful activity concerned
- the ISP is not aware of facts from which unlawful activity is apparent;
- the ISP on obtaining knowledge or becoming aware acts expeditiously to remove or disable access to the information.
The defence is not available where the recipient of the service is acting under the control of the ISP. A court may make orders prohibiting infringement or requiring that it cease.
Obligations of ISP and Intermediaries
An EU Directive provides that that Member States must not impose a general obligation on ISPs to monitor information they transmit or store nor may they impose any obligation to actively seek facts or circumstances indicating illegal activity.
States may establish obligations for information society providers, promptly to inform public authorities of alleged illegal activities undertaken or information provided by customers or obligations to communicate to the competent authorities, at their request, information enabling the identification of the recipients of their services, with whom they have storage agreements.
Once the ISP has been informed of the defamatory material, the question arises as to what it is obliged to do to remove it. Where removal is impracticable without enormous cost, expense or complication, there is a limit to the steps which are required of the ISP to remove it.
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