Lawyer describes suggestion to sue ISPs for defamatory content as ‘radical’ and ‘an onerous burden’
Keith Ashby, partner and head of dispute resolution at Sheridans, has told The Drum what the suggestion by Robert Jay QC, to sue internet service providers for any defamatory content users see, could mean and if it is legal.
“It is understandable why Lord Justice Leveson sidestepped the issue of regulating the internet following his inquiry into the culture, practice and ethics of the press. It is an incredibly difficult problem to solve in light of the concerns that regulation in this area may have a chilling effect on the freedom of expression.
“Publication of information on the internet poses additional potential difficulties to those which arise in the newspaper and magazine industries; for example, identifying the person who posted the material, and overcoming jurisdictional barriers when servers are located in countries which look more favourably upon the rights of publishers.
“The proposal made by Robert Jay QC is a radical one and would impose an onerous burden on an ISP, unless the reality of the role played by ISPs is recognised. The Defamation Act 1996 and the E-Commerce Regulations 2000 currently allow ISPs to rely on a number of defences if they inadvertently allow defamatory statements to be made available online through the services they provide.
“However, immunity can also be lost in circumstances where an ISP has actual acknowledge that the material which it is making available infringes the rights of others or in the event that the ISP makes an editorial contribution to the material. The law, therefore, currently seeks to strike a balance so as not to impose an unreasonable obligation on ISPs to police material for which they are not responsible, while also providing a mechanism for individuals to object to material about them which is communicated through the services of an ISP. Mr Jay’s proposal risks overlooking the reality that an ISP is ordinarily simply a conduit for information.”