Bunt v Tilley
| Jurisdiction | England & Wales |
| Judge | The Hon. Mr Justice Eady |
| Judgment Date | 10 March 2006 |
| Neutral Citation | [2006] EWHC 407 (QB) |
| Docket Number | Case No: 5EX90059 |
| Court | Queen's Bench Division |
| Date | 10 March 2006 |
1. David Tilley
2. Paul Hancox
3. Christopher Stevens
4. Aol Uk Ltd
5. Tiscali Uk Ltd
6. British Telecommunications Plc
[2006] EWHC 407 (QB)
The Hon. Mr Justice Eady
Case No: 5EX90059
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Claimant appeared in person
Jane Phillips (instructed by Kirkpatrick & Lockhart Nicholson Graham LLP) for the fourth Defendant
Jonathan Barnes (instructed by Lawrence Stephens) for the fifth Defendant
Sapna Jethani (instructed by Catherine Lloyd) for the sixth Defendant
Mr John Bunt, the Claimant, seeks remedies in these proceedings against six defendants. The first three are individuals, Mr David Tilley, Mr Paul Hancox, and Mr Christopher Stevens. They take no part in the applications now before me. The Claimant complains of statements hosted on websites, the responsibility for which he attributes to one or other of the first three Defendants. What is controversial, however, is that he also seeks remedies against their respective internet service providers ("ISPs"). The fourth to sixth Defendants are, respectively, the ISPs of the first to third Defendants.
The ISP Defendants all now apply, on grounds which overlap to a large extent, for orders that the claims against them be struck out or dismissed on a summary basis. The fourth Defendant ("AOL") and the sixth Defendant ("BT") apply both under CPR 3.4(2) and CPR 24.The fifth Defendant ("Tiscali") has confined itself to reliance on CPR 3.4(2).
The matter came before Gray Jon 2 December 2005, when the Claimant was given an opportunity to identify the nature of his claim more clearly. The case was accordingly reformulated in amended particulars of claim dated 8 December 2005.
It is notable that the Claimant takes the stance that the words complained of in this litigation form only a small part of the totality of defamatory allegations published about him through the internet. He regards it as an on-going problem. He claims that " … it is a precursor to a pandemic scale infection that is already widespread and festering just below the surface". Nevertheless, he has to recognise that there is no mechanism in this kind of litigation for proceeding on the basis of "sample" publications. If a claimant wishes to sue over defamatory allegations, and to recover compensation and other remedies in respect of them, they must be set out clearly in the particulars of claim.
It is important in the context of the present applications that it is not pleaded that any of the three corporate Defendants has at any stage "hosted" any website relevant to these claims. The basis upon which the Claimant seeks to establish his causes of action is that the individual Defendants published the offending words "via the services provided" by their ISPs. The claim therefore raises points of general significance as to the basis upon which a provider of such services could," if at all, be liable in respect of material which is simply communicated via the services which they provide.
The Claimant submits as follows:
"This is not some tuppeny ha'penny storm in a teacup, this is a truly vast case, the like of which English Defamation Law has never before seen, because of both the scope and nature, as well as the medium. It positively screams out for a Trial, and one way or another it will have one."
It is necessary to consider the evidence relied on by the parties dealing with the role of ISPs in general and, more specifically, the interrelationship between the two sets of Defendants in these proceedings. Evidence is admissible for the purposes of an application for summary judgment under CPR Part 24, although in the context of CPR Part 3 the court is concerned with the pleaded case which is the subject of challenge. Thus, the primary question on such an application would 'be whether or not any facts pleaded are capable of giving rise to liability on the part of an ISP for publication of material via its services. It is not, for example, pleaded against any of the corporate Defendants that it authorised any relevant publication or was vicariously responsible for it. 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.
The high point of the Claimant's case in this respect is to rely upon the fact that the corporate Defendants have provided a route as intermediaries, whereby third parties have access to the internet and have been able to pass an electronic communication from one computer to another resulting in a posting to the Usenet message board. The Usenet service is hosted by others, who are not parties to these proceedings, such as Google. It is not accepted that the relevant postings necessarily took place via the relevant ISP services, but that would be a matter for the Claimant to establish at trial. For the moment, that assumption should be made in his favour.
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.
My attention was drawn to certain passages in Dr Matthew Collins' work The Law of Defamation and the Internet (2nd edn, 2005) at paras. 15.38 and 15.43:
"There is … a line of authority arising out of intellectual property cases in the United Kingdom to the effect that persons who procure the commission of torts are liable jointly and severally with the principal tortfeasor, while persons who merely facilitate the commission of such torts are not exposed to liability. It is possible that this line of authority might apply to defamation law. If so, telephone carriers might be mere facilitators of defamatory telephone calls, and so not capable of being held liable as publishers.
…
There is … an argument that telephone carriers are mere 'facilitators' of telephone calls and therefore cannot be responsible for the publication of defamatory telephone calls. If that view is correct, and there is a distinction between 'publishers' and 'mere facilitators', then there is a strong argument that mere conduit Internet intermediaries are mere facilitators of Internet publications passing through their computer systems, and therefore not responsible for publishing them".
The line of authority to which Dr Collins was referring was exemplified in such cases as CBS Songs Ltd v Amstrad Consumer Electronics plc [1988] 1 AC 1013, 1058 (breach of copyright); PLG Research Limited and Ardon International Ltd [1993] FSR 197, 238–9 (infringement of patent); MCA Records Inc v Charly Records Ltd [2002] EMLR 1 (infringement of copyright and trademark); Douglas v Hello! Ltd [2003] EMLR 29 at [70] (breach of confidence: liability as a joint tortfeasor will only be imposed where the claimant proves 'concerted action to a common end'). There is no instance so far in which that line of authority has been extended into the field of defamation although, as Dr Collins points out, in MCA Records Inc v Charly Records Ltd Chadwick LJ observed (at p27) that the line of authority applied "at feast in the field of intellectual property" (emphasis added).
It is now necessary to consider the decision of Morland J in Godfrey v Demon Internet Ltd [2001] QB 201, upon which the Claimant relies. In that case, the Defendant was an ISP, which had received and stored a defamatory article on its news server which had been posted by an unknown person via another ISP. Mr Godfrey informed Demon of the defamatory nature of the article and requested its removal from their news server. It remained available, however, until its automatic expiry. In his statement of claim Mr Godfrey made it clear that he was confining his claim for damages to the period after January 1997, when the Defendant had knowledge that the posting was defamatory. The Defendant relied upon s.1(1) of the Defamation Act 1996, arguing that it was not the publisher of the statement in question; that it had taken reasonable care; and that it did not know, and had no reason to believe, that it had caused or contributed to the publication of a defamatory statement. Mr Godfrey applied to strike out that part of the defence as unsustainable.
Morland J granted the application, holding on the particular facts that the Defendant was not merely a passive owner of an electronic device through which postings were transmitted. It had actively chosen to receive and store the news group exchanges containing the posting, and it could be accessed by its subscribers. It was within its power to obliterate the posting, as indeed later happened. Once the Defendant knew of the defamatory content and took the decision not to remove it from its news server, it was no longer able to satisfy the requirements of s.1 (1)(b) that reasonable care had been taken, or of s.l (1)(c) that it did not know, and it had no reason to believe, that what it did caused or contributed to the publication. The learned Judge considered a number of authorities and at p208H-209A concluded:
"In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every...
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