Case: Godfrey v Demon Internet Ltd [2001] QB 201, [1999] 4 All ER 342; [2000] 3 WLR 1020
Outcome: cited
The applicant submits that the decision in Godfrey v Demon Internet Ltd [2001] QB 201, [1999] 4 All ER 342; [2000] 3 WLR 1020 should be applied. In that case, the defendants carried on business as an Internet Service Provider and received and stored on their news server an article, defamatory of the plaintiff, which had been posted by an unknown person using another service provider. The plaintiff informed the defendants that the article was defamatory and asked them to remove it from their news server. They failed to do so and it remained available for some 10 days until its automatic expiry. It was held that the defendants were liable at common law as the publisher of the posting they were not merely the passive owner of an electronic device through which postings were transmitted but actively chose to receive and store the news group exchanges containing the posting which could be accessed by their subscribers and could have chosen to obliterate the posting complained of, as they later did. The critical portion of the judgment was as follows ([2001] QB at 208 209): "In my judgment the defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus every time one of the defendants' customers accesses soc.culture.thai and sees that posting defamatory of the plaintiff there is a publication to that customer. The situation is analogous to that of the bookseller who sells a book defamatory of the plaintiff: see Weldon v 'The Times' Book Co. Ltd (1911) 28 TLR 143 (the case about the books on Gounod); to that of the circulating library who provided books to subscribers: see Vizetelly v Mudie's Select Library Ltd [1900] 2 QB 170 (the case about the book on Stanley's search for Emin Pasha in Africa: see in particular the judgment of Romer LJ pages 178 181); and to that of distributors: see Bottomley v FW Woolworth &amp; Co Ltd (1932) 48 TLR 521 (the case about the article in Detective Story Magazine headed 'Swindlers and Scoundrels. Horatio Bottomley, Editor and Embezzler') and Sun Life Assurance Co of Canada v WH Smith &amp; Son Ltd (1933) 150 LT 211 (the case about newspaper posters announcing 'More grave Sun Life of Canada disclosures'). I do not accept Mr Barca's argument that the defendants were merely owners of an electronic device through which postings were transmitted. The defendants chose to store soc.culture.thai postings within their computers. Such postings could be accessed on that newsgroup. The defendants could obliterate and indeed did so about a fortnight after receipt." 29 In Kaplan v Go Daddy Group [2005] NSWSC 636 White J, in an interlocutory decision, speaking of comments disparaging of a business posted on a website said (at [32] [33]): "There is also a serious question to be tried that he was the author of the other headings and comments on the site to which I have referred. Even if he was not the author of those headings and comments, there is still a serious question to be tried as to whether he published the statements which appeared on the site. He established the site and thereby invited disparaging comments. He maintained some control over the site. He said that he, along with anyone else, could remove any of the comments from the site. The extent of his control over what was, or was not, published, was not fully explored, but it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet Ltd [2001] QB 201 ; [1999] 4 All ER 342, or the proprietors and secretary of a golf club which allowed a defamatory statement to remain on a notice board in Byrne v Deane [1937] 1 KB 818; 2 All ER 204. In Godfrey v Demon Internet Ltd , it was held that an internet service provider was a publisher at common law of the defamatory comments posted on the site by an unknown user." 31 It was held in Bunt v Tilley [2006] 3 All ER 336; [2006] EWHC 407 (QB) that an Internet service provider that performed no more than a passive role in facilitating postings on the Internet and did not "host" the relevant website was not deemed to be a publisher at common law any more than a telephone company would be liable for defamation over the telephone. Godfrey [2001] QB 201 was distinguished. 32 The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )