Networking in Berkshire - Business Event Details

Hi friends, I would like to share with all of you a recent High Court defamation case, which highlights the potential legal consequences of social networking for ISPs and the provisions of “hosting defence”.

Currently, Internet Service Providers can claim exemption from liability due to:

  • Regulation 19 of the Electronic Commerce (EC Directive) Regulations 2002, which gives an Exemption from Liability for Unlawful Content to Information Society Service Providers (ISPs), who store user-generated content without monitoring or moderating it in any way, provided that they satisfy certain conditions, as to awareness and expeditious removal of offending content; and
  • Section 1 of the Defamation Act 1996, which provides a defence from liability for defamation for those who do not take an active editorial role in what is published, but make defamatory material available to third parties.

The judge in this case, analysed the requirements of the above legal provisions and confirmed as follows:

1) The inclusion on a website of content written or proactively chosen by the operator, alongside unmoderated user-generated content, did not necessarily preclude the operator from relying on the Regulation 19 defence.

2) ISPs' protection is not withheld merely, because a defendant, who would otherwise qualify for protection, also provides a different service, which does not qualify for it. A court will only have to take into account the specific blog posting complained of, when determining whether ISPs could potentially have a defence under Regulation 19.

3) In order for the ISP liability exemption to be withdrawn, the ISP must have actual knowledge of unlawful activity or information at the time, when publication is occurring.

4) In order for the ISP liability exemption to be withdrawn, the ISP must have constructive knowledge of blog post and that it was unlawful and untrue.

5) For ISPs to continue benefitting from the liability exemption, they must act expeditiously to remove or disable access to the post, once they became aware of it and until a decision is taken as to the unlawfulness or not of the material.

6) Assuming that, the ISP is a “service provider” for the purposes of Regulation 19, has no actual or deemed knowledge of the defamatory post and acts expeditiously to remove it, is the user acting under ISP’s authority or control, when he/she post the statements?

This case undoubtably offers ISPs and other website providers some peace of mind as to the liability exemption.

It also, however, highlights ISPs legal responsibilities and the importance that they review their terms and conditions (and the way such terms are brought to the users attention) and adopt suitable usage policies that address the above and give ISPs the right to act expeditiously where it is alleged defamation without incurring any liabilities vis-a-vis their users.

For a fuller discussion of the case please visit www.anassutzi.com/articles

Views: 4

Comment by Keith Grover on May 9, 2010 at 12:33
Thanks Maria for highlighting this ruling. It's may be expressed in what I call 'chunky legal speak' for those of us not well-versed in the law, but I think even I've got the gist of it after a couple of read throughs :0)

It's very relevant information for us folk hosting social networking sites like Networking in Berkshire and Networking in Surrey. We certainly monitor what our Members post to the sites, and would always exclude defamatory material from people with an axe to grind. We should all take care over what we post online - because ot will be there forever. Like an elephant, Cyberspace never forgets!

I am passionately opposed to spamming, and actively discourage blog posts which simply repeat 'I'm great, buy my stuff, buy my stuff, please buy my stuff'. I can't believe that serious business people could naïvely imagine this approach would work. Would they respond positively themselves if spammed in this way? I believe it just turns everybody off.

Your approach is much more productive and in the spirit of best-practice networking. Provide useful information and free advice, and by all means mention that you have lots more where that came from. That way , when we do need the services you offer, we are much more likely to come to you than go to your competitors. Please keep it coming!

BRs

K
Comment by Dr Maria Anassutzi on May 9, 2010 at 17:48
Hi Keith,
Thank you for this. I do try to avoid "legal speak" but as you very well reminded me I need do more. Thank you for this! I do write this blog and articles for two main reasons. The first (you may be surprised!) is to share knowledge and educate start up and other small businesses of potential legal risks so that they know if and when to accept a particular risk. From experience, the businesses that need most legal help are indeed the small starting up businesses (precisely those that very often cannot afford to go to a solicitor). For this reason I also run a blog where I publish free of charge articles and best practices. For those interested my blog is http://mariaipexpert.wordpress.com (I hope you do not mind me mention this). The second (and I would lie if I were to deny it) is indeed for networking purposes in the hope (as you put it very well) if indeed any member needs any help that person may first try coming to me!.

Cheers

Maria

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