Notice and take down procedure on the internet.

9 November 2009

Notice and take down procedure on the internet.

By Jane Coyle

The result of the Godfrey ruling mentioned earlier is that, in order to rely on the section 1 defence, ISPs and other intermediaries now have to remove allegedly defamatory postings as soon as they are put on notice of their existence. This removal process is called a 'notice and take down procedure'.

The ISP would not be entitled first to investigate the merits of the allegations nor to assess the availability of other libel defences, unless it suspends access to the posting while it does so.

As explained above, to qualify for the defence an ISP has to show that it was not the author, editor or publisher of the defamatory statement.

An ISP or other intermediary which exerts some kind of editorial control over the content of its server or statements made by its users may therefore become classified as an author, editor or publisher under the Defamation Act and so lose the benefit of the section 1 defence.

On the other hand, an ISP which decides not to monitor its server or respond to complaints, as in the Godfrey case, is likely to clear the first hurdle of not being an author, editor or publisher, but will fall foul of the requirement of section 1(1) (b) to take reasonable care in relation to the publication of the statement complained of.

The practical result is that whether the ISP believes that a statement complained of is libellous or not, it is now simply not worth risking the consequences of allowing it to remain on its server. It is thought that, although some ISPs may use electronic monitoring devices, most will not spend large sums of money and time attempting to track down defamatory comments.

Given the vast amounts of material on their servers and the present state of the law, it is impossible for ISPs to monitor content in this way. Instead, they will simply operate as efficient a 'notice and take down' procedure as possible.

Another problem facing ISPs is that taking material down from their servers may put them in breach of their subscriber contracts, particularly in the case of consumers. In the case of consumers, a clause allowing the ISP to remove material will be subject to the test of reasonableness. Simply removing material without any investigation at all may therefore leave an ISP open to claims for breach of contract from its subscribers.

Jane Coyle is a trainee solicitor at Lawdit and can be contacted at jane.coyle@lawdit.co.uk