Godfrey v Demon Internet Ltd
| Jurisdiction | England & Wales |
| Judgment Date | 26 March 1999 |
| Date | 26 March 1999 |
| Court | Queen's Bench Division |
Defamation - Internet service provider - Responsibility for publication - Defendant receiving, storing and transmitting postings on news server - Plaintiff requesting removal of defamatory posting - Whether defendant publishing defamatory posting - Whether knowing of or taking reasonable care in relation to publication -
The defendants, who carried on business as an Internet service provider, received and stored on their news server an article, defamatory of the plaintiff, which had been posted by an unknown person using another service provider. The plaintiff informed the defendants that the article was defamatory and asked them to remove it from their news server. The defendants failed to do so and it remained available on the server for some 10 days until its automatic expiry. The plaintiff brought proceedings for libel against the defendants, who relied in their defence on section 1(1) of the Defamation Act 1996, F1 contending that they were not the publisher of the statement complained of, that they had taken reasonable care in relation to its publication, and that they did not know and had no reason to believe that they had caused or contributed to the publication of a defamatory statement. The plaintiff applied to strike out that part of the defence as disclosing no reasonable or sustainable defence at law.
On the plaintiff's application:—
Held, granting the application, that as a service provider who transmitted or facilitated the transmission to any of their newsgroup subscribers of a posting received and stored by them via the Internet the defendants were a publisher of that posting at common law; that they were not merely the passive owner of an electronic device through which postings were transmitted but actively chose to receive and store the news group exchanges containing the posting which could be accessed by their subscribers, and could have chosen to obliterate the posting complained of, as they later did; that, although they were not a publisher within the meaning of section 1(2) and (3) of the Act of 1996 and could therefore satisfy section 1(1)(a) of that Act, once they knew of the defamatory content of the posting and chose not to remove it from their news server they could no longer satisfy the additional requirements of section 1(1)(b), that they took reasonable care in relation to the publication, or section 1(1)(c), that they did not know and had no reason to believe that what they did caused or contributed to the publication; and that, accordingly, the parts of their pleaded defence which relied on section 1(1) of the Act of 1996 would be struck out (post, pp. 1024E–F, 1026H, 1027B–C, H, 1030F–G).
The following cases are referred to in the judgment:
Anderson v. New York Telephone Co. (
Bottomley v. F. W. Woolworth & Co. Ltd. (
Byrne v. Deane [
Cubby Inc. v. CompuServe Inc. (
Day v. Bream (
Emmens v. Pottle (
Lunney v. Prodigy Services Co. (
Pullman v. Walter Hill & Co. Ltd. [
Stratton Oakmont Inc. v. Prodigy Services Co. (
Sun Life Assurance Co. of Canada v. W. H. Smith & Son Ltd. (
Vizetelly v. Mudie's Select Library Ltd. [
Weldon v. “The Times” Book Co. Ltd. (
Zeran v. America Online Inc. (
No additional cases were cited in argument.
The following additional cases, although not cited, were referred to in the skeleton arguments:
Basham v. Gregory (unreported), 21 February 1996; Court of Appeal (Civil Division) Transcript No. 148 of 1996,
E. (A Minor) v. Dorset County Council [
Mackenzie v. Business Magazines (U.K.) Ltd. (unreported), 18 January 1996; Court of Appeal (Civil Division) Transcript No. 13 of 1996,
Williams and Humbert Ltd. v. W. & H. Trade Marks (Jersey) Ltd. [
Interlocutory Application
The plaintiff, Dr. Laurence Godfrey, brought proceedings for libel against the defendants, Demon Internet Ltd., an Internet service provider who had stored and permitted transmission of a posting defamatory of the plaintiff on their news server via the Internet. By their defence of 16 March 1998, the defendants contended, inter alia, that they were not a publisher of the posting in question and that even if they were prima facie a publisher in law, they were none the less excused from any liability to the plaintiff pursuant to section 1 of the Defamation Act 1996. By summons dated 6 October 1998, the plaintiff applied for an order, pursuant to
The facts are stated in the judgment.
Justin Rushbrooke for the plaintiff.
Manuel Barca for the defendants.
Cur. adv. vult.
26 March. Morland J. handed down the following judgment. According to counsel this is the first defamation action involving the Internet to come up for judicial decision within this jurisdiction. However, I had a number of American cases cited before me. The United States was in the forefront of the early development of the Internet. Care has to be taken before American cases are applied in English defamation cases. The impact of the First Amendment of the United States Constitution has resulted in a substantial divergence of approach between American and English defamation law. For example in innocent dissemination cases in English law the defendant publisher has to establish his innocence whereas in American law the plaintiff who has been libelled has to prove that the publisher was not innocent. Nevertheless the American decisions are educative and instructive as to the workings of the Internet and the problems which arise when defamatory material finds its way onto the Internet.
The plaintiff by his summons seeks to strike out parts of the defence as disclosing no sustainable defence. In short the defendants' contention is that they were not at common-law the publishers of the Internet posting defamatory of the plaintiff and that even if they were there is material upon which they can avail themselves of the defence provided by section 1 of the Defamation Act 1996, “a modern equivalent of the common law defence of innocent dissemination” (see per Lord Mackay of Clashfern L.C., in Hansard (H.L. Debates), 2 April 1996, col. 214, Defamation Bill).
The factual backgroundThe plaintiff is a lecturer in physics, mathematics and computer science resident in England. The defendant is an Internet service provider (“I.S.P.”) carrying on a business in England and Wales. The Internet is a worldwide computer network. Three facilities (amongst others) are provided via the Internet: e-mail, the World Wide Web and Usenet. This case is primarily concerned with Usenet.
1. e-mail is normally electronic mailing of a message from one sender to one recipient. The sender makes a connection to his own local I.S.P. to whom he transmits his e-mail message. The sender's I.S.P. transmits the message via the Internet to the recipient's I.S.P. At the recipient's request his local I.S.P. sends the message to the recipient.
2. The World Wide Web provides a facility for one to many publication. “Web pages” are held at a particular site (usually operated by an I.S.P.) in such a way that they can be accessed by Internet users world wide. The creator of web pages sends them to his local I.S.P. who stores them. An Internet user can access and download copies of the pages by connecting to his own local I.S.P. and requesting transmission of those pages via the Internet.
3. Usenet is one to many publication from author to readers round the world. An article (known as a posting) is submitted by its author to the Usenet news-server based at his own local I.S.P. (the originating I.S.P.) who disseminates via the Internet the posting. Ultimately it is distributed and stored on the news-servers of every (or nearly every) I.S.P. in the world that offers Usenet facilities to its customers. Internet users world wide can read and download the posting by connecting to their local I.S.P.'s news-servers.
“Usenet News” is the name...
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