Reference:  EWHC 407 (QB);  1 WLR 1243;  3 All ER 336;  EMLR 523
Court: Queen's Bench Division
Judge: Eady J
Date of judgment: 10 Mar 2006
Summary: Libel - Internet Service Providers - Liability at common law - Electronic Commerce (EC Directive) Regulations 2002 - s.1 Defamation Act 1996 - Abuse of process
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Jonathan Barnes (Defendant)
Jane Phillips (Defendant)
Instructing Solicitors: Lawrence Stephens for Tiscali UK Ltd, BT legal department for British Telecommunications plc
The Claimant sued three individuals for libel and harassment over allegedly defamatory postings made on Internet chatrooms. He also sued the Internet Service Provider of each individual, namely AOL, Tiscali and BT, on the basis that having each provided their respective customer with a connection to the Internet they too were responsible for the postings complained of. The ISP Defendants applied to have the claim struck out and/or for summary judgment on it.
(1) Whether the ISP Defendants were publishers at common law.
(2) The protection afforded by the Electronic Commerce (EC Directive) Regulations 2002 and the Defamation Act section 1 to ISPs when providing internet access services.
(3) Whether the claim was an abuse of the court’s process.
Dismissing the claims:
(1) it would be wrong to attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP: the position of an ISP is not analogous to that of a distributor of defamatory material;
(2) further, the ISPs were “information society service” providers within the definition of the Electronic Commerce Regulations. As such, they would have available to them the “mere conduit”, “caching” and “hosting” defences of Regulations 17, 18 and 19, where they were without knowledge of their customers’ postings. Similarly, section 1 of the Defamation Act 1996 would afford an ISP a complete defence in relation to any claim brought over postings of which it had not been put on notice;
(3) this was also a case (as brought against the ISPs) which engaged the public policy considerations concerning abuse of process highlighted by Jameel v Dow Jones
This is a reassuring case for ISPs, who would have been concerned if an alternative outcome meant they had routinely to monitor activities of hundreds of thousands of customers. The judgment takes the position of the “passive media” considered in Godfrey v Demon Internet Ltd a stage further, and introduces by judicial decision for the first time consideration of the 2002 Electronic Commerce Regulations. ISPs are unlikely to be concerned as to the precise mechanism by which the Regulations, the Defamation Act 1996 and the common law give them practical immunity in relation to actions of their customers of which they are unaware. But this judgment is useful for media lawyers, putting a number of current issues concerning responsibility for Internet and electronic publication into the context of English libel law’s attempt to keep up with the technology.