Website dangers: Ignore complaints at your peril 1

Dr Laurence Godfrey recently settled his libel claim against the US Internet service provider Demon Internet for a payment of GBP15,000 plus his legal costs, highlighting the risks of allowing visitors to your website to post messages for others to read.

The offending messages had not originated from Demon, but from a third party subscriber to Demon’s newsgroup service who had posted offensive remarks about Dr Godfrey on an Internet newsgroup bulletin board. The messages were held on Demon’s server and could be accessed by any interested party anywhere in the world. Because of the peculiar rules of English law, Godfrey was able to sue Demon if anyone in England read those messages.

Section 1 of the Defamation Act 1996, anticipating problems caused by the internet, provides a defence for innocent publishers of defamatory material and defines “publishers” to include those involved “in processing, making copies of, distributing, or selling any electronic medium in or on which the statement is recorded, or in operating any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form.”. Unfortunately, the defence is only available if such persons can show that they “took reasonable care in relation to its publication, and...did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.”

Demon’s defence fell down on the second limb of this test because Dr Godfrey had complained to Demon about the messages and Demon had failed to remove them before they were deleted automatically some days later.

Although the messages in this case were clearly defamatory, and would have been viewed as such by most readers, any ISP or owner of a website where others can post messages may be taking on a considerable risk if they fail to remove any messages immediately they receive a complaint. Do they have time to investigate the background and/or the truth behind the allegation? Do they want to be bothered to expend time fighting other people’s battles?

The Defamation Act 1996 gives no definition of what constitutes good or sufficient notice, and this failing presents significant problems for ISPs and others who are put on “notice” of defamatory publications. Does a short e-mail complaining of allegedly defamatory content constitute proper “notice”? At present, there is no requirement for the notice to be given in any particular format or to set out any prescribed details. Nor is there a requirement that the complainant pursues the original author. ISPs or site owners who act quickly to remove all material complained about may soon find their sites contain little of interest or value and that their hit rate and advertising revenue drops accordingly. The problem may be even more serious for internet retailers holding stocks of books, music or videos about which complaints are made. Third parties such as ISPs and retailers are not generally in a position to make any sort of informed judgement about the allegedly defamatory publications, having had no input into their content. As the law stands at present, they must either be very cautious or take what could turn out to be a very big financial risk.

This is an area of the law which should be clarified by Parliament at the earliest opportunity so that it cannot be used in bad faith against innocent ISPs and other publishers or sellers who would otherwise have good defences under the Defamation Act. In the meantime we consider that, although the more cautious approach would be to refrain from publishing/selling pending a proper investigation, it would not be unreasonable, in circumstances where the meaning or impact of the allegedly defamatory publication is not clear, to ask the complainant for further details. This is especially so if the removal of the publication, be it a message from a bulletin board or a product from a shop, would cause loss to the third party publisher’s or seller’s business.

For further information on defamation and the position of third party publishers, please contact Tim Hardy, Head of Litigation and Dispute Resolution, tel +44 (0)20 7367 3000 or e-mail [email protected].