APPENDICES
¶3.181 The desirability and practicality of regulating internet content is a hotly contested subject and
the existing legal position is complex, both as a result of the fact that there is no comprehensive framework at a domestic level which establishes a mechanism for regulation of the internet and secondly because of the extent to which the courts have tried, not always successfully, to apply the traditional principles of defamation to the Internet.
¶3.182 The distinction between libel and slander is not straightforward in the context of the internet,
where the medium through which the information is published may resemble television programmes (with video), radio programmes (with audio), or notice-boards or text akin to newspaper articles. In short, the internet may involve transient or permanent publication and may comprise spoken and/or written word. Section 166(1) of the Broadcasting Act 1990 has the effect of deeming a number of internet communications and internet services to be published in permanent form, and this is actionable as libel.309
¶3.183 Websites that host user generated content pose a particular difficulty in this context. The
1901general position appeared to be that the websites were to be regarded as publishers of the material posted on their websites, although they would not be liable for the initial publication if they did not participate in the publication (for example by editing or approving the post). However, upon notice of a complaint as to the content of a post, if steps were not taken to remove the content, liability could be established, subject to defences, for example section 1(1) of the Defamation Act 1996 and Regulation 19 of the Electronic Commerce Regulations 2002.310 The notice given to the website must disclose the facts or circumstances which form the basis of the allegation.311 In Davison v Habeeb, the court determined that Google, as host of Blogger.com, was arguably a publisher under the common law of content hosted on the blog and that liability would follow notification of a complaint.312 However, the recent decision of Tamiz v Google casts some doubt on this approach.313 Eady J found that Google Inc was not a publisher even when on notice as to the offending blogs, even though it had the technical capabilities to take down the post. Google was not a publisher within the well recognised common law principles of defamation as its role as a platform provider was a purely passive one.314
¶Appendix 4 | Legal Materials
¶3.184 The Electronic Commerce Regulations set out the circumstances in which Internet
intermediaries are responsible for material which is not created by them, but which is hosted, cached or carried by them.315 The Regulations draw a distinction between intermediaries who are mere conduits (regulation 17), who cache information (regulation 18), and who host information (regulation 19). Regulation 19 provides a defence where the service provider does not have actual knowledge of unlawful information or is not aware of facts and circumstances from which it would have been apparent to the service provider that the information hosted was unlawful.316 Section 1(1) of the Defamation Act 1996 is regularly invoked by websites as a defence on the basis that they are not the author, editor or commercial publisher of a statement.
¶3.185 The courts have struggled to apply traditional defamation principles to the internet and the
case law has thrown up a number of interesting issues of unique application to the internet. For example, a special feature of chatrooms, message boards or blogs is that the text can continually evolve with new comments being added which may affect the context and meaning of previous and subsequent post. It has been decided that the final thread must be treated as a single publication for the exercise of determining meaning.317 Further, the meaning of the words must be considered in light of the purpose and role of chat rooms and message boards, where casual, emotive and imprecise speech are all common features. As Eady J explained in Smith v ADVFN people who participate in bulletin boards expect a certain amount of repartee or give and take.318,319 p3, para 6, ibid p74, lines 16-18, ibid. By implication, this was irrespective of whether there was a voicemail message at all. DCS Williams did not apply the narrow interpretation of s1 of RIPA when identifying 'victims'. This was plainly the correct approach given that regardless of the applicability of s1 of RIPA, the accessing of any voicemail message amounts to a criminal offence under s1 of the CMA. Therefore, all individuals whose voicemail messages have been intercepted are victims of crime, irrespective of whether the messages concerned were intercepted before or after they were heard by the intended recipient p68, lines 3-17, Colin Myler, http://www.levesoninquiry.org.uk/wp-content/uploads/2011/12/Transcript-of- Morning-Hearing-15-December-20111.pdf p65, lines 1-3, HMI Roger Baker, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/03/Transcript-of- Afternoon-Hearing-5-March-2012.pdf p1, para 2, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Witness-Statement-of-David- Cameron-MP.pdf; http://www.publications.parliament.uk/pa/cm201011/cmhansrd/cm110713/debtext/110713-0001. htm#11071354000003 pp286-287, ibid p20, para 3.36, http://www.levesoninquiry.org.uk/wp-content/uploads/2012/06/Submission-by-MediaWise1.pdf para 14
¶3.186 The application of the defamation principles to the internet remains an area of considerable
uncertainty. Whilst the courts have attempted to fashion principles that are workable in the short term, the law in this area is far from clear and this has given rise to conflicting decisions. Other jurisdictions have similarly struggled to grasp the complexities of the operation of the internet and recognised the need for the courts to view libel allegations within the unique context of the internet. A comprehensive framework of coherent rules and regulation remains lacking and it is likely that the law will be subject to further development in this area.
¶Defamation Bill 3.187 The Bill proposes a number of amendments to the law of defamation, including codification
of matters which have been established in case law as well as proposing some changes to the existing law. The key features of the Bill in its present form can be summarised as follows.320
¶3.188 Clause 1 provides that a statement is not defamatory unless its publication has caused or is
likely to cause serious harm to reputation. This clause builds upon recognition by the courts that there is a threshold of seriousness and sets a relatively high bar for bringing a claim.
¶3.189 The Bill also includes a number of provisions that operate as defences to a claim for
1902defamation, codifying much of the common law with some amendments. Clause 2 abolishes the common law defence of justification to provide for a statutory defence of truth, namely a defence where the statement complained of its substantially true. Clause 3 abolishes the common law defence of fair comment and provides for a defence of honest opinion which