THIS is a For What Its Worth to Anyone who is interested post.
In uk.legal, Dr. Laurence Godfrey wrote:
LANDMARK ENGLISH INTERNET LIBEL RULING
26 March 1999
The English High Court ruled today in a landmark decision that ISPs "publish", for defamation purposes, the Usenet material made available to their customers through being stored on the ISPs' news servers. The Court also decided that once ISPs have been notified that they are publishing a libellous posting they cannot rely on the so-called "ISPs' defence" under the Defamation Act 1996.
The case was brought by Laurence Godfrey, an English physicist, against Demon Internet Limited, one of the UK's largest Internet Service Providers. Dr. Godfrey wrote several times to Demon requesting them to remove from their news servers a seriously defamatory Usenet posting" which originated from someone in the USA. Demon received the letters, but did nothing.
In what is believed to be the first definitive ruling on Internet libel by an English High Court judge, Mr. Justice Morland held that the traditional common law rules on publication applied to the Internet. There is publication by the ISP even if the ISP had no knowledge of the defamatory nature of the material. It is immaterial that, as in this case, the message in question originated from outside the jurisdiction from an author who was not a customer of the ISP. The ISP is liable for the publication unless they can establish their innocence or some other recognised defence. The judge said:
"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."
Mr. Justice Morland further ruled that once on notice of a defamatory publication, Demon could not avail itself of the "ISPs' defence" under section 1 of the Defamation Act 1996. The Court rejected as "hopeless" Demon's defence under section 1, since Dr. Godfrey had restricted his claim to the period after he had put Demon on notice of the libellous posting. The judge said:
"In my judgment the defamatory posting was published by the Defendants and, as from 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."
Dr. Godfrey applied in the High Court to strike out various portions of Demon's defence in which was pleaded: that Demon were not a publisher; that their role in the publication was passive; and their defences under Section 1 of the Defamation Act 1996. The application was completely successful.
Mr. Justin Rushbrooke, Dr. Godfrey's Counsel, argued successfully that the English Court should disregard the American decisions in this area. These held that a telephone company, and more recently an ISP, did not "publish" defamatory material.
Demon argued that their operations in respect of Usenet were analogous to those of a telephone company. The judge unequivocally rejected Demon's argument:
"I do not accept...that the Defendants were merely owners of an electronic device through which the postings were transmitted".
Nick Braithwaite, a partner with Bindman & Partners, Dr. Godfrey's solicitors, welcomed the High Court's decision. He said:
"It is in line with Parliament's intentions. ISPs cannot now put their heads in the sand and kid themselves they are not publishing libellous messages".
Dr. Godfrey said the decision was a victory for common sense:
"I am glad that the judge recognised that the defence Demon put forward was unsustainable and struck out every part of it that we objected to. It has long been apparent that an ISP publishes to its customers the material on its news servers and that it would be liable, once on notice, for the publication of defamatory material, but it has suited the ISPs to pretend otherwise or to argue that the law is unclear. In fact the law was perfectly clear but now it is clearer still".
The case is expected to come to trial later this year.
PLAINTIFF AWARDED £15,000 DAMAGES AND COSTS IN INTERNET LIBEL ACTION AGAINST CANADIAN
Dr. Laurence Godfrey, an English physicist, has been awarded damages for a series of Internet libels originating from Mr. Michael Dolenga, a Canadian national who was living in New York when he published the offending material. In this ground-breaking cross-jurisdictional defamation action brought in the English High Court, Mr. Dolenga failed to defend the proceedings and has been ordered to pay Dr. Godfrey 15,000 English pounds and costs.
On 29 October 1997 Laurence Godfrey issued a writ for libel in the English High Court in London against Michael Dolenga of Victoria, British Columbia, Canada. Dr. Godfrey's claim was in respect of the publication by Mr. Dolenga in 1994-1995 of five articles ("postings") via the Internet to the Usenet newsgroup soc.culture.canada. The articles contained false and malicious allegations of a highly defamatory personal nature.
Despite public warnings from Dr. Godfrey that he would sue, Mr. Dolenga repeated and embellished the libellous allegations. In his postings to soc.culture.canada, Mr. Dolenga invited Dr. Godfrey to sue him, wrongly believing that the US First Amendment protected him against libel proceedings for the publication of false statements. Given the international nature of the Internet, the material in question was disseminated world-wide. Laurence Godfrey, who lives in England, elected to restrict his claim against Mr. Dolenga to damage sustained in England and Wales as a result of publication of the articles within that jurisdiction.
On 3 February 1998 the English High Court entered a default judgment against Mr. Dolenga and on 26 February 1999 the court assessed damages for libel against Mr. Dolenga at 15,000 English pounds (approximately 40,000 Canadian dollars). In addition, Dr. Godfrey was awarded costs against Mr. Dolenga.
"The seriousness of the allegations made against me", said Dr. Godfrey after the judgment, "is reflected by the very sizeable award of damages in spite of the limited readership of the newsgroup in question in England and Wales".
Damages and costs are payable by Mr. Dolenga forthwith, failing which Dr. Godfrey says that the judgment against Mr. Dolenga will be vigorously enforced. "In that case I will also seek to recover from Mr. Dolenga the costs of whatever enforcement action has to be taken until such time as the judgment debt is paid in full". |
