14 Apr 2010

The High Court has ruled that an internet service provider can avoid liability for potentially libellous user-generated content, in the form of a blog posting, under the E-Commerce Regulations, provided that he has not checked or amended the contents in any way.  Fixing the spelling or removing profanities could be sufficient to lose him that protection though.

Facts

The case involved a post by John Gray on Alex Hilton’s political blog Labourhome.org in which Gray alleged that Johanna Kaschke, who was active in local politics, had been arrested on suspicion of being a member of the Baader-Meinhof terrorist group.

Kaschke sued Gray and Hilton for libel, stating that although she had been arrested, this was not on suspicion of being a member of the terrorist group.

Hilton claimed that although he controlled the website, he did not monitor or moderate the contents, and so he would have a defence under Regulation 19 of the E-Commerce Regulations.

Regulation 19

Regulation 19 of the E-Commerce Regulations gives a defence to liability for unlawful content for service providers who host user-generated content provided the service provider does not have actual knowledge of the unlawful content, and upon gaining actual knowledge he removes the content expeditiously.

High Court’s Decision

The Judge considered the extent of the exemption and commented that if the service provider’s activities went beyond mere storage, such as checking posts for spelling and grammar and making corrections, then the immunity granted in Regulation 19 would not be available.

The Judge also commented that the fact that part of a site is moderated does not prevent other un-moderated areas to benefit from the exemption.

Comment

This judgment has highlighted the limited nature of the hosting defence. The defence will only be available where no services other than storage of the content have been provided. As soon as service providers seek to do anything to the content – even something minor such as correcting typos or deleting expletives – they will be deemed to be doing more than mere storage and will lose the benefit of the defence.

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