The Internet & Communications Law
Godfrey and the Demon
MARK STEPHENS, MARIETTA CAUCHI, AND AMBER MELVILLE-BROWN
London is the libel capital of the world, as many (reluctant) defendants are finding to their cost. It is the forum of choice for the nonresident claimant who has little or no connection with the jurisdiction. London's claimant-friendly libel laws, including defendants' burden of proof and glittering prizes of large awards of damages, have seduced many claimants to fight their causes in London. This has spawned interesting developments in English forum non conveniens case law as it applies to libel.
However, there is another interesting development for the unwary U.S. publisher/poster: the advent of the Internet litigator, who can base jurisdiction before the English courts based on one posting read, or thread received, in the jurisdiction. Forum non conveniens arguments are of little help where the claimant or the subject of the posting is based in England. One of the most interesting examples of this phenomenon is the frequent claimant Dr. Laurence Godfrey.
Laurence Godfrey is a lecturer and researcher in physics who has spent much of this decade bringing libel actions in the United Kingdom (U.K.) against news group users and access or service providers. He is not the only one, but he was probably the first and perhaps the most prolific. This has led to a rather greater than otherwise warranted notoriety for Mr. Godfrey among publishers and other users of the Internet.
In most of these cases, publication of the allegedly defamatory response was posted by non-U.K. residents in news groups hosted on servers outside the U.K. The history and developments of these claims are informative.
Godfrey first sued a rival academic in Dr. Laurence Godfrey v. Dr. Philip Hallam-Baker.1 The action involved news group postings in the summer of 1993. Dr. Hallam-Baker lived in Geneva, and the articles were posted on the UseNet network. There was no showing of any actual instance of anyone having read the offending material within England and Wales. The action settled without going to a final trial, but not before the Court concluded at an interim hearing that U.K. jurisdiction would have been inferred. The Court held that UseNet posting would have been replicated on hundreds or thousands of computers worldwide, that a number of ISPs carried the relevant news group, that in 1993 there was a significant group of people with access to the Internet and it was therefore likely that it would have been read in the U.K.
By contrast, there was no ruling in the Hallam-Baker case on whether news group postings constitute "publication" in a legal sense. A publication via the Internet is not, as is required by the U.K. defamation laws, in any permanent or material form, as news group postings (excluding archives like Deja news) only "exist" for a few days.
The exception was Michael Dolenga, against whom judgment in default was entered and who is now fighting the enforcement of that judgment on the grounds that U.K. libel law is antipathetic to the U.S. Constitution. Dolenga's argument rests on the basis that a judgment obtained in and applying the laws of a country that does not adhere to rules requiring a libel claimant to shoulder the burden of proof as to falsity and "fault," as enshrined in the U.S. Constitution, will not be enforced in the United States.3
Under a balancing approach, because different judges will evaluate the facts and
The scope of potential defendants was broadened further when Dr. Godfrey began suing not only employers, but the local telecommunications company or personal computer users group for carrying the defamatory material.4
Some Examples
Interestingly, the current Justices most prone to adopt a balancing approach are not-as would
have been the case in decades past-those identified with the "conservative" wing of the Court.
The "balancing" Justices-Stevens, Souter, and Breyer-are generally identified with the
moderate or liberal wing of the Court.
The obvious next step led to the doors of the Internet service providers (ISPs) and Dr. Godfrey's recent action against Demon Internet Limited. Dr. Laurence Godfrey v. Demon Internet Ltd5 is the first defamation action involving the Internet to come up for judicial decision within the U.K., albeit on a pretrial motion rather than trial of all the issues. The Court struck parts of the defense as disclosing no sustainable defense. The judgment is of great importance for ISPs because it states for the first time under U.K. law that an ISP can be held liable for disseminating a defamatory publication emanating from a third party.
The decision is based on the Court's interpretation of section 1(1) of the Defamation Act 1996, which provides a defense to parties with secondary responsibility for defamatory publications.
ISPs, as well as printers and distributors, may rely on this defense if they are not the primary publishers of the statement complained of, if they took reasonable care in relation to its publication, and if they did not know or have reason to believe that they caused or contributed to the publication of a defamatory statement.
ISPs are specifically excluded from the definition of publisher under section 1(3)(e) of the Defamation Act, which states that a person shall not be considered the author, editor, or publisher of a statement if he is only involved "as the operator of or provider of access to a communication system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control."
On January 17, 1997, Godfrey sent a fax to the managing director of Demon Internet Limited informing him that a posting purporting to have come from him was in fact a forgery, that it was defamatory, and that Demon should remove it from its UseNet news server. However, the posting remained on the news server until it expired on January 27, 1997. Godfrey issued proceedings for defamation and his application to strike out the innocent dissemination defense mounted by Demon was heard on March 26, 1999.
Demon relied on section 1(3)(e) of the Defamation Act, arguing that it was excluded from the definition of publisher. Nevertheless, while it was accepted that Demon was not a publisher, the Court held that Demon could not avail itself of the innocent dissemination defense. Having been notified of the defamatory posting and having failed to remove it from its UseNet news servers, Demon could not be said to have taken reasonable care or to have disseminated the defamation innocently.
The Court rejected Demon's argument that it was merely the owner of an electronic device through which postings were transmitted. The judge said that Demon chose to store the postings within its computer, such postings could be accessed on that news group, and Demon had the power to control and obliterate such postings.
In his judgment, Judge Morland said that Demon was not the publisher of the posting within sections (1)(2) and (1)(3) of the Defamation Act-that is not a primary publisher-and could avail itself of section 1(1)(a). A primary publisher includes the author, editor, and commercial publisher of the statement. Expressly excluded from this definition are those involved only in printing, distributing, producing, or selling printed material containing the statement; processing, copying, distributing, or selling any film or sound recording or electronic medium on which the statement is recorded; operating any equipment/system by means of which the statement is made available in electronic form; and those only involved 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 the operator/provider has no control. However, the judge said that any transmission by Demon of a defamatory posting is a publication (as secondary publisher) to any subscriber accessing the information.
In his subsequent judgment6 on the defendant's application to amend the defense by adding particulars of instances of Godfrey's conduct in mitigation of damage, Judge Morland had "no hesitation" in allowing the proposed amendment. "If I did not the Judge would be assessing damages in blinkers." He went on to say that there was material on the basis of which the defendant could assert that the plaintiff's action was not brought bona fide for the purpose of vindication and that a defendant should not be prevented from advancing the full case it would wish.
This judgment raises various questions: (1) Is the Court saying that the transmission by an ISP of a defamatory posting finds liability because the ISP is able to exercise control over such transmission? (2) Can the ISP as a "passive" medium really be said to or expected to exercise control? (3) Is an ISP's ability to exercise control sufficient to constitute the "reasonable care" test (section 1(1)(b) Defamation Act) and is this triggered by notification?
Demon's barrister Manuel Barca argued that Demon's position was comparable to that of the New York Telephone Company in Anderson v. New York Telephone Co.7 in which the New York Court of Appeals held there was no publication by the company because it had had no direct hand in disseminating the material, whether authored by another or not. Anderson's case against the New York Telephone Company predates the statutory protection provided by U.S. legislation to Internet providers. So too does the case of Cubby v. CompuServe,8 in which the Second District Court of New York held that the computerized database provided by the defendant to its subscribers was in effect an electronic library and should not be subject to a lower standard of liability than that applicable to a public library, book store, or newsstand, none of which are liable for defamatory publications if they are ignorant of or have no reason to know of the defamation.
By the time of Lunney v. Prodigy Services,9 a defendant was able to rely on section 230 of the Communications Decency Act of 1996, which protects a provider whether or not it has knowledge or editorial control over the third-party content. Section 230(c) is very similar in terms to section 1(e) of the Defamation Act 1996, but the defense of innocent dissemination under the Act is only available if the provider has taken reasonable care and is in fact ignorant of the defamatory publication.
Dr. Godfrey has undoubtedly exposed the global vulnerability of Internet publishers, providers, and users that may have no knowledge of, or little or no control over, the content of material posted, transmitted, and accessed, particularly in countries such as the U.K. where there are no obvious safeguards. All the signs are that "content aggregators" in Europe will be held liable for third-party content after the expiration of a reasonable period to investigate10 following notification of allegedly defamatory material. It is anticipated that U.K. draft legislation and a draft European directive on e-commerce expected to be published soon will include provisions to this effect.
The implications for freedom of speech worldwide are profound. It will be relatively easy to establish U.K. publication via the Internet, wherever the server or access provider is based. It is impractical if not impossible for these players to police comprehensively, even if this were desirable. In addition, the expense of defending U.K. defamation proceedings may tempt some to remove potentially offensive material. Whenever possible, suitable warranties and indemnities should be obtained, but there is a real danger that the benefits of the Internet will sustain and increase the chilling effect on freedom of speech.
Endnotes
1. 1993 G No.: 2819.
2. See Dr. Laurence Godfrey v. (1) Toronto Star Newspapers Ltd. (2) Ken Campbell, 1997 G No.: 1036; see also Dr. Laurence Godfrey v. (1) Cornell University (2) Michael Dolenga, 1997 G No.: 1188; and Dr. Laurence Godfrey v. (1) University of Minnesota (2) Starnet Communications Inc. (3) Kritchai Quanchairaut, 1997 G No.: 1187.
3. See Bahchem v. India Abroad Publications, Inc., 585 N.Y.S.2d 661 (1992); see also Matusevich v. Telnikoff, 23 Media Law Rep. (BNA) 1367 (D.D.C.).
4. See Dr. Laurence Godfrey v. (1) Telecom New Zealand Limited (2) Surade J Panchavinin, 1997 G No.: 1071; see also Dr. Laurence Godfrey v. (1) Melbourne PC Users Group Inc (2) Don Joiner, 1997 G No.: 1071.
5. 1998 G No.: 30.
6. 1998 G No.: 30.
7. 35 N.Y.S.2d 746 (1974).
8. 776 F. Supp. 135 ( S.D.N.Y. 1991).
9. 1998 WL 999836 (N.Y. App. Div. 2d 1998).
10. In a copyright infringement case, Monsoon Ltd. v India Imports of Rhode Island Ltd. Fleet Street Reports [1993] 487, the U.K. court held that fourteen days was a reasonable period for investigation.
Mark Stephens, Marietta Cauchi, and Amber Melville-Brown are with the London media firm Stephens Innocent.