Diane Wraith -v- Nominet UK

The Pitman Case

One in a Million Judgment

One in a Million Order

One in a Million Appeal Judgment

Godfrey v Demon Internet

Published in (1999) Journal of Civil Liberties, 4(2), 260-267 (July).

Please cite as: Akdeniz, Y., Case Analysis: Laurence Godfrey v. Demon Internet Limited, (1999) Journal of Civil Liberties, 4(2), 260-267 (July).

The Facts

The case of Laurence Godfrey v. Demon Internet Limited (1) involves the first judicial decision within England and Wales which concerns a defamatory statement made via e-mail through an Internet Usenet discussion group. (2) The case is also the first one to take into account the liability of an Internet Service Provider under section 1 of the recently enacted Defamation Act 1996.

Dr Laurence Godfrey is a lecturer in physics, mathematics and computer science based in London. The Defendant, Demon Internet, is one of the major Internet Service Providers ("ISPs") within the United Kingdom.

On 13 January, 1997, a posting in the USA was made to an Internet newsgroup "soc.culture.thai" (3) which Demon Internet carries and stores through an unknown source. The message was traced back to a forged message which made it appear that it came from the Plaintiff in the case.

On 17 January, 1997, the Plaintiff sent a letter by "fax" to Demon Internet informing the Defendants that the posting was a forgery, and that he was not responsible for its posting via e-mail and requested the Defendants to remove the posting from Demon Internets Usenet news server as it was defamatory of him. (4)

The defamatory posting was not removed as requested but remained available on the Demon Internet news server until its expiry on about 27 January, 1997. Technically, Demon was in a capacity to remove the posting in question but chose not to do so.

The Plaintiff claimed damages for libel in respect of the posting after notice has been given on 17 January, 1997 that the posting was defamatory.

The Decision

According to Mr Justice Morland, whenever the Defendants transmit postings (including those defamatory postings) from the storage of their news server, they "publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the Defendants customers accesses "soc culture thai and sees that posting defamatory of the Plaintiff there is a publication to that customer." (5)

The Defendants had a choice but they did "chose to store "soc.culture.thai" postings within their computers." Furthermore, the Defendants had the chance and option to "obliterate [the defamatory posting] and indeed did so about a fortnight after receipt" according to Mr Justice Morlands decision. However, Demon Internet did not intentionally remove the message in question but it was removed automatically from Demon Internets news server approximately 15 days after its initial publication.

According to Mr Justice Morland, "this posting was squalid, obscene and defamatory of the plaintiff." Furthermore, in the judgement of Mr Justice Morland, "the defamatory posting was published by the Defendants and, as from the 17th January 1997 they knew of the defamatory content of the posting, they cannot avail themselves of the protection provided by Section 1 of the Defamation Act 1996 and their defence under Section 1 is in law hopeless."

However, Mr Justice Morland allowed Demon Internet to amend its defence on 23 April, 1999. (6) He stated that various postings allegedly made by the plaintiff himself in various newsgroups "could well be submitted to be puerile, unseemly and provocative. In effect they invite vulgar and abusive response." This issue is relevant to the assessment of the damages by the trial judge (7) and Mr Justice Morland thought that "there is a real danger that the Trial Judge might award damages which were not rightly proportionate to the true injury suffered by the Plaintiff."

Analysis

The main legal issue discussed within this case is section 1 of the Defamation Act 1996 which deals with the defence of innocent dissemination. (8) For the defence to succeed under section 1, the defendant needs to establish that (a) he was not the author, editor or publisher of the statement complained of; (b) he took reasonable care in relation to its publication; and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

There is no doubt that an Internet Service Provider would qualify as a "publisher" under Section 1(2) of the Defamation Act which defines a commercial publisher as a "person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business." However, for the purposes of section 1(3) of the 1996 Act, "a person shall not be considered the author, editor or publisher of a statement if he is only involved-

"(a) in printing, producing, distributing or selling printed material containing the statement;

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;

(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control."

According to Mr Justice Morland, Demon Internet "were clearly not the publisher of the posting defamatory of the Plaintiff within the meaning of Section 1(2) and 1(3) and incontrovertibly can avail themselves of Section 1(1)(a)" within this case. However, the defendants were subject to Section 1(1)(b) and 1(1)(c) of the Defamation Act 1996 following the notice given by the plaintiff on 17 January, 1997. Therefore, according to Mr Justice Morland, "this places the Defendants in an insuperable difficulty so that they cannot avail themselves of the defence provided by Section 1." (9)

The Defendants, Demon Internet, argued 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." However, Mr Justice Morland did not accept this argument by relying on both the common law case of Byrne .v Deane (10) and on section 17 of the 1996 Act which states that "publisher" is specially defined for the purposes of section 1 of the 1996 Act while "publication" and "publish" have common law definitions for the purposes of the law of defamation.

Mr Justice Morland also referred to the US cases but found them "of only marginal assistance because of the different approach to defamation across the Atlantic." (11) Mr. Justice Morland thought that the US cases were "educative and instructive". However, he stated in his judgement that:

"The impact of the First Amendment 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."

The US Congress decided not to impose tort liability on Internet Service Providers which carry other third parties potentially defamatory content through their servers as a policy decision and the effect of the section 230 of the Communications Decency Act 1996 was to overturn the decision made in the Prodigy case. (12) Wilkinson C.J. in Zeran v. America Online (13) stated that "section 230 creates a federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service. Specifically, Section 230 precludes courts from entertaining claims that would place a computer service provider in a publishers role. Thus, lawsuits seeking to hold a service providers liable for its exercise of a publishers traditional editorial functions -- such as deciding whether to publish, withdraw, postpone or alter content -- are barred."

However, Mr. Justice Morland stated that, the UK parliament "did not adopt this approach," and the 1996 Act did not have this purpose and therefore differed from the US laws and cases. A Consultation paper issued by the Lord Chancellors Department in July 1995 stated that:

"The defence of innocent dissemination has never provided an absolute immunity for distributors, however mechanical their contribution. It does not protect those who knew that the material they were handling was defamatory, or who ought to have known of its nature. Those safeguards are preserved, so that the defence is not available to a defendant who knew that his act involved or contributed to publication defamatory of the plaintiff. It is available only if, having taken all reasonable care, the defendant had no reason to suspect that his act had that effect." (14)

Furthermore Lord Mackay L.C. described the new Section 1 defence as "a modern equivalent of the common law defence of innocent dissemination" (15) during the passage of the Bill through the House of Lords and rejected an idea by Lord Lester that an entirely new defence should have been created with section 1 of the 1996 Act with a view to provide a defence "to a person who was indeed aware, or on notice that he was contributing to a defamatory publication, but nevertheless chose to do so". (16) Lord Lesters suggestion would have provided an adequate protection for the likes of Internet Service Providers. However, Lord Mackay L.C. stated that "it would not be right to deprive a plaintiff of his cause of action against a defendant who was aware that he might be wronging the plaintiff and misjudged the plaintiffs chances of succeeding in a defamation action." (17)

Dr Godfrey stated that he was delighted with the decision which meant in his view that "ISPs do publish material on their news servers and, once they are on notice, they can not avail themselves of that defamation defence." (18) After the Courts decision, Dr Godfreys solicitor, Nick Braithwaite stated that "ISPs cannot now put their heads in the sand and kid themselves they are not publishing libellous messages."

However, Demon Internet decided to file an appeal (19) following the decision of Mr Justice Morland and believes that "the decision could have a profound impact on the entire Internet community if Internet Service Providers are charged with responsibility for monitoring personal opinions carried over the Internet." (20) Demon Internet further argued in a post judgement press release that the possibility of an Internet Service Provider being held liable for any content posted on the Internet, "opens up the debate on free speech and censorship of such content."

Likewise Cyber-Rights & Cyber-Liberties (UK) criticised the decision and stated that "this decision will have a profound effect on cyber-speech," and the ruling, if not reversed on appeal "would make Britain, a very hostile place for network development in the Information Age." (21) According to the organisation, "the Defamation Act does not give adequate protection to the ISPs" and "the decision will have a chilling effect over the Internet communications."

But Dr. Godfrey claims that the ruling has "caused immense misunderstanding" and stated that:

"Most people see it as an attack on the freedom of speech, . but they have to distinguish between the right to state their views and opinions, and the quite different matter of imaginary rights to make defamatory comments or statements and get away with it." (22)

However, according to Cyber-Rights & Cyber-Liberties (UK) notice should not be enough to make the ISPs liable for such postings:

"It is also totally unacceptable that an offended party should simply notify an Internet Service Provider claiming the information to be legally defamatory. The current state of the UK laws forces the ISPs to be the defendant, judge, and the jury at the same time. Notice should not be enough in such cases." (23)

The author predicts a considerable amount of "notice and takedown" situations being faced by the Internet Service Providers following the Demon decision. In almost all cases "notice and takedown" will become a routine practice for the ISPs and newsgroup postings and web pages will be taken down by the ISPs who (legitimately) do not want to become involved in costly court action. Such a procedure will have a chilling effect on cyber-speech and furthermore, the "notice and takedown" provisions of the Defamation Act are open to misuse especially by multi-national companies keen to silence any public criticism of their activities or products.

The onus is now on the UK Parliament to resolve the ISP liability issue by amending section 1 of the 1996 Defamation Act to provide further protection to the UK ISPs. There is clearly need for strong lobbying by the ISP industry which was notably missing at the time the Defamation Act was enacted.

Currently, there are two ISPs trade organisations, namely the Internet Service Providers Association ("ISPA-uk") (24) and the London Internet Exchange ("LINX") (25) and they will be lobbying for the change of law following the Demon judgement. However, it should be noted that both of these trade organisations are more interested in protecting their own member ISPs interests than the rights and freedoms of Internet users. Certainly such rights as freedom of expression and privacy have not been a primary consideration of Internet Service Providers and their trade organisations so far. Despite this criticism more legal protection is needed for the ISPs, to protect cyber-speech from censorship and to fully embrace the Information Age.

Footnotes

1. Case No: 1998-G-No 30 in the High Court of Justice, Queens Bench Division, (Handed Down at Leicester Crown Court), before Mr. Justice Morland, 26 March, 1999, at http://www.courtservice.gov.uk/godfrey2.html; Godfrey v. Demon Internet Ltd, Queens Bench Division, (1999) The Times, April 20, [Judgment March 26]. This was a pre-trial court ruling involving an application to strike out the defendants defence, a procedure brought under RSC Ord 18 r19(1)(a). See further the judgement of 23 April, 1999 at http://www.courtservice.gov.uk/godfrey3.html
    
2. Usenet is a part of the Internet which includes discussion groups or forums known as newsgroups accessible through out the world. An article posted to a Usenet Discussion group would be disseminated through the Internet from the originating ISPs news-server. Ultimately it is distributed and stored on the news-servers of every (or nearly every) ISP in the world that offers Usenet facilities to its customers. Internet users world wide can read and download the posting and respond to that posting by connecting to their local ISPs news-server.
    
3. Newsgroups are organised into broad subject areas known as "Hierarchies". One such hierarchy is the "SOC" hierarchy which contains such newsgroups as "soc.culture.thai" and "soc.culture.british" in which social issues are discussed.
    
4. It should be noted that this is not the first time the plaintiff brought a libel action against another Internet user or against another Internet Service Provider in England: 1997-G-No. 1036 against Toronto Star Newspapers Limited and Ken Campbell (in relation to a message alleged to have been posted to "soc.culture.canada" on 11 September 1994); 1997-G-1070 against Melbourne PC Users Group Inc and Donald Victor Adam Joiner (in relation to messages alleged to have been posted to "sct"); 1997-G-No.1071 against Telecom New Zealand and Suradej Panchavinin (in relation to a message alleged to have been posted to "sct"); 1997-G-No 1187 against the University of Minnesota, Starnet Communications Inc. and Kritchai Quancharut (in relation to a message alleged to have been posted to "sct"); 1997-G-No 1188 against Cornell University and Michael Dolenga (relating to messages alleged to have been posted to "soc.culture.canada"); and 1998-G- No 2819 against Phillip Hallam-Baker.
    
5. According to Mr Justice Morland, the publication of a defamatory statement through the servers of an ISP was analogous to situations within the cases of Weldon .v. "The Times" Book Co. Ltd (1911) 28 T.L.R. 143 (bookseller who sold a book defamatory of the Plaintiff); Vizetelly .v. Mudies Select Library [1900] 2 Q.B. 170 (a library who provided books to subscribers); Bottomley .v. F.W. Woolworth [1932] 48 T.L.R.530 (distributors of magazines); Sun Life Assurance .v. W.H. Smith (1934) 150 L.T. 211.
    
6. See Laurence Godfrey v. Demon Internet Limited, Case No: 1998-G-No 30 in the High Court of Justice, Queens Bench Division, (Handed Down at Leicester Crown Court), before Mr. Justice Morland, 23 April, 1999, at at http://www.courtservice.gov.uk/godfrey3.html
    
7. The sides agreed that trial will be without a jury.
    
8. See further Lord Chancellors Department, Reforming Defamation Law and Procedure: Consultation on Draft Bill, July 1995.
    
9. Mr. Justice Morland relied on a Consultation Document issued by the Lord Chancellors Department in July 1995 and the words of Lord Mackay L.C. during debate on the Defamation Bill on the 2nd April 1996 (see Hansard Col. 214).
    
10. The liability in common law would be in the same position as the golf club committee in Byrne v Deane [1937] 1 KB 818, whose liability arose from failing to remove the defamatory material from its notice board. Greene L.J. stated at page 837 that "The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?" See generally Patrick Milmo QC and WVH Rogers, Gatley on Libel and Slander, 9th ed, Sweet & Maxwell, 1998.
     
11. Mr Justice Morland referred to such cases as Cubby v. CompuServe 776 F.Supp. 135 (S.D.N.Y. 1991) (CompuServe was protected as a distributor by the First Amendment); Stratton Oakmont v. Progidy [1995] N.Y. Misc. Lexis 229;23 Media L. Rep 1794, (Cubby was followed but Prodigys decision and policy to have editorial control over content resulted in favour of the plaintiffs); Zeran v. America Online [1997] 129 F3d 327; and Lunney v. Progidy Services [1998] WL 999836 (NYAD 2 Dept).
     
12. Stratton Oakmont v. Progidy [1995] N.Y. Misc. Lexis 229;23 Media L. Rep 1794.
     
13. Zeran v. America Online [1997] 129 F3d 327.
     
14. Lord Chancellors Department, Reforming Defamation Law and Procedure: Consultation on Draft Bill, July 1995, paragraph 2.4.
     
15. See per Lord Mackay L.C. Hansard. 2nd April 1996. Col 214 Defamation Bill (H.L.).
     
16. Ibid.
     
17. Ibid.
     
18. See BBC News, "ISP loses defence in libel battle," March 26, 1999, at http:/news.bbc.co.uk/hi/english/sci/tech/newsid_304000/304869.stm
     
19. On April 23, 1999, Mr Justice Morland allowed Demon Internet to include further material in support of its defence of the case brought by Laurence Godfrey. See Demon Internet Press Release, "Laurence Godfrey v Demon Internet," 23 April 1999, at http://www.dispatches.demon.net/cgi-bin/framer.pl/pr/1999/pr1999-04-23a.html.
     
20. 0. See Demon Press Release, "Court decision may affect entire ethos of freedom of speech on the Internet and leave UK businesses lagging behind the rest of the world in electronic commerce," 26 March, 1999, at http://www.dispatches.demon.net/pr/1999/pr1999-03-26a.html
     
21. Cyber-Rights & Cyber-Liberties (UK) Press Release, "- UK ISP found liable for defamation," 26 March, 1999, at http://www.cyber-rights.org/press. See also Press Association, "Demon court ruling threat to internet freedom," 30 March, 1999; PC Week, "Demon rattled in first round of court battle ," 06 April 1999; "Sweeping UK Net Libel Decision, Wired News, 26 March, 1999, at http://www.wired.com/news/news/politics/story/18764.html; and ZDNet UK News, "Demon defamation result: a ticking bomb for UK ISPs," 26 March, 1999 at http://www.zdnet.co.uk/news/1999/12/ns-7539.html.
     
22. Uhlig, R., "Libel setback for Demon," The Daily Telegraph, Connected Section, April 1, 1999.
     
23. See the above CR&CL (UK) press release.
     
24. See further http://www.ispa.org.uk/.
     
25. See further http://www.linx.net/.