Monday, 12 April 2010

Regulation 19 defence for information society service providers

I spent a lot of time at the weekend moving books around, having acquired a new bookcase. It now houses our collection of political biographies (plus my treasured but probably valueless autographed copy of The Middle Way), and it brought home to me how much politics has changed since I was involved in it. I don’t think it was necessarily gentler, but the media though which outrageous statements could be made immediately available to the whole world didn’t exist – so perhaps it seemed more civilised.

Then I read Kaschke v Gray & Hilton [2010] EWHC 690 (QB) (29 March 2010) and it confirms my impression. The facts don’t need setting out here. Suffice to say that G allegedly posted defamatory statements about K on a blog called, controlled and operated by H. H applied to have the claim struck out, on the grounds that he had good defences under section 1 of the Defamation Act (not the author, editor or publisher) and Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002 (S.I. 2002 No 2013) (“mere conduit, caching and hosting”), lost before the Master, was refused permission to appeal, appealed against that to Eady J who allowed it, and then ended up appealing the Reg 19 (but not the s1) defence to Mr Justice Stadlen.

H contended that all he did was make available the service in which others could post. It was not proactively moderated, or even closely monitored although as you’d expect he would (he said) consider postings about which complaints were made and take appropriate action. (The claimant’s complaint about the posting in question was sent by post to the wrong address rather than to the email address provided on the blog, which wasn’t a great start.)
However, it seems that the website did have a system – initiated, the master said, by H – under which entries on the site were “recommended”: he had the power to adjust the scope to give entries that status. He “promoted” posts – making them more prominent than they otherwise would be. He checked spelling and grammar when he did this, too. And of course he would delete material where necessary, as well as blocking spam accounts from posting. The s1 defence was not the stuff of summary judgment: there was an issue to be tried. As for reg 19, the master referred to the judgment of Eady J (him again!) in Bunt v Tilley [2006] EWHC 407:

8. The high point of the claimant’s case in this respect is to rely upon the fact that the corporate Defendants have provided a route as intermediaries, whereby third parties have access to the internet and have been able to pass an electronic communication from one computer to another resulting in a posting to the Usernet message board. The Usernet service is hosted by others who are not parties to these proceedings, such as Google. It is not accepted that the relevant postings necessarily took place via the relevant ISP services but that would be a matter for the claimant to establish at trial. For the moment, that assumption should be made in his favour.

9. When considering the internet, it is so often necessary to resort to analogies which, in the nature of things, are unlikely to be complete. That is because the internet is a new phenomenon. Nevertheless an analogy has been drawn in this case with the postal services. That is to say, ISP do not participate in the process of publication as such, but merely act as facilitators in a similar way to the postal services. They provide a means of transmitting communication without in any way participating in that process.

Again, there were questions to be tried about the extent of H’s control over the service. Summary judgment was not appropriate.
The Master went on (just in case) to consider whether H could be said not to have actual knowledge of unlawful activity or information and not to be aware of facts and circumstances from which it would have been apparent to him that the publication was unlawful. Those words “would have been” indicate of a test of observation by a reasonable person, having regard to all the circumstances. This was something else that was not suitable for summary determination, in the Master’s view: the judge in the appeal did not need to go there.
There was also a triable issue about whether H had acted expeditiously in taking down the offending material. Although he had acted promptly when he received K’s email with a copy of her lawyers’ letter to him, originally sent in June but to the wrong address, he might have had the requisite knowledge or awareness before then. The judge in the appeal did not have to decide on this, as he was already satisfied that the claim should not be struck out.
He also confirmed that just because a host operates other services that he does monitor, edit, moderate or otherwise influence does not automatically deprive him of the defence under Regulation 19, even if that material that he has influenced appears alongside the unmoderated material complained of.
An interesting judgment casting light on this important area, even though it is only on a summary application. An indication of how interesting is the fact that the judgment on these points runs to 37 pages. How long judgments are growing: just for fun, I compared it with Donoghue v Stephenson, which runs to 25 – four lengthy speeches, and a short one from Lord Tomlin.

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