The growth, both actual to date and potential, of the internet as a means of communicating is unprecedented. Here we consider the reasons behind the explosive growth of the internet, and focus on one particular area where basic legal principles were applied to this fast-changing medium with interesting results.
Advantages of the internet
When compared with what is affectionately described as "snail mail", the use of the internet to correspond has many advantages.
Communication with another party anywhere in the world can be almost instantaneous. The form of communication is flexible; messages can be re-arranged, forwarded and can incorporate material drawn from any other part of the web.
Whilst may some disagree, it is arguable that the internet is an easy medium to use, with the "point and click" method of interfacing with a terminal well-established.
Finally, in the UK at least, the proliferation of free access service providers means the use of the internet can be as cheap as the cost of a local call.
For these, and for many other reasons, use of the internet is growing. With the opportunities inherent in such growth, risks also increase.
The applicability of defamation rules
In the first instance decision of Laurence Godfrey v Demon Internet, the issue of defamation was considered in the context of the internet.
One of the interesting aspects of this decision was the possibility that an Internet Service Provider (ISP) which had no form of control over the postings made by subscribers, could nevertheless be held liable for those postings in the law of defamation.
The role of an ISP is to provide access to the internet for its subscribers/members. There are several aspects to such access.
Access can involve subscribers/members surfing the internet, corresponding with other individuals, reading and writing on news groups and bulletin boards and setting up their own web pages.
In this latter respect, the ISP acts as a physical host to the web page on behalf of the subscriber/member.
In this case, a posting was made which, according to the Judge, was "squalid, obscene and defamatory to the Plaintiff". The Plaintiff was a lecturer in physics, mathematics and computer science resident in England. The posting was expressed to have been produced by the Plaintiff but it was in fact a forgery. The Plaintiff faxed the managing director of the Defendant ISP informing him that it was a forgery, noting that he was not responsible for it and asking that it be removed from the server.
The Defendant did not remove the posting for some two weeks after having received the fax. The Plaintiff therefore claimed damages in libel in respect of the posting for the period after he had made the Defendant aware of the nature of the posting.
The Plaintiff was successful in his claim. The Judge, Mr Justice Morland, said that the situation was analogous to that of a bookseller selling a book which was defamatory of the Plaintiff; the argument that the Defendant was merely the owner of an electronic device through which the posting (over which it obviously had no control) was transmitted was rejected.
It was held that the Defendant chose to store the defamatory posting within its computer, that the posting could be accessed, and that the Defendant had within its power to delete the defamatory posting.
There are important lessons for those who provide access to the internet.
Obviously, ISP's would be advised to maintain effective customer service systems in order that complaints of this nature can be dealt with expeditiously. It is understood that several ISP's are considering the use of electronic filters to find and delete postings which are of such a nature. It may be that human policing of the postings on an ISP's server would also be appropriate.
However, applying the same principle, anyone who facilitates access to the internet could be found liable for the same reasons as in the Demon Internet case.
The principle could be applied to organisations which provide internet access for employees. In theory, putting a terminal on an employee's desk allowing access to the internet could (because of the wide meaning given to the term Publisher) result in the same liability accruing against employees as was found in Demon Internet to accrue against ISPs. The natural inclination of a party who goes to the extent of issuing proceedings for defamation is to pursue the party with deepest pockets
One theme here has been that of opportunity risk. Organisations would be well advised to have appropriate policies and procedures in respect of internet use in place and to ascertain the availability of appropriate insurance in respect of liability in this area.