July 20 2000
The judge found that someone in the United States had posted a message which was 'squalid, obscene and defamatory' of Godfrey to the Usenet newsgroup 'soc.culture.thai'. Demon subsequently received the posting via its general newsgroup feed and automatically made it available on 'soc.culture.thai' from its own newsgroup servers.
Godfrey faxed Demon, drawing its attention to the presence of the message on its newsgroup servers and asking it to remove the message. Demon did not remove it. The message remained available on their servers until it expired about 10 days later.
Godfrey sued Demon, claiming that Demon became liable for defamation once he had notified it of the posting's existence on its newsgroup servers and it then failed to remove or block access to the posting. Godfrey did not claim that Demon was liable for publication of the posting before he gave it notice.
The settlement of the litigation sets no legal precedent. However, at the hearing (held in April 1999) the judge had decided two key points. The first was that by making the posting available from its newsgroup servers, Demon was publishing the contents of the posting. The second was that once it had received notice, Demon knew (or should have known) about the contents of the posting and so could not rely on the 'innocence' defence available under UK law to ISPs and other secondary disseminators.
The Demon Case deals only with defamation liability and not with not other types of liability (eg, copyright infringement), for which the liability rules are different in each case. The case confirms that online intermediaries in the United Kingdom are potentially liable for defamation in respect of the material they carry. They should implement appropriate procedures to minimize that risk. Although the laws of defamation vary in different jurisdictions, all ISPs should take note of the importance of dealing with 'take down notices' and of ensuring that their contractual arrangements with content providers and customers are correctly structured to minimize risk.
For further information on this topic please contact Samantha Smith at Bird & Bird by telephone (+44 207 415 6000) or by fax (+44 207 415 6111) or by e-mail (firstname.lastname@example.org).
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