Two examples of take down and notice procedures.

11 November 2009

Two examples of take down and notice procedures.

1. Demon Internet

The first example is related to the Godfrey case. Professor Godfrey had complained about further newsgroup postings, which quoted the original words complained of in his action against Demon before the case had been tried. Demon responded to his complaint by not only removing the comments complained of, but also suspending newsgroup access to certain members until they signed a form of indemnity so that they, and not Demon, would be liable for any further defamatory postings.

This secondary action was taken because the previous conduct of the author, editor or publisher is one of the factors to be taken into account in determining whether reasonable care has been taken. Demon was concerned that if the same user repeated any of the comments in subsequent postings, it would not be able to claim the benefit of the section 1 defence.

Although the removal of the postings was necessary to avoid any possible future liability, it is arguable that suspension of newsgroup access was not necessary for those doing it for the first time, who may not even have realised that what they were doing amounted to publication of defamatory material. However, from a commercial perspective, Demon cannot be blamed for taking this action given the uncertainty as to what amounts to 'reasonable care'. The dissatisfaction of a small number of subscribers is a small price to pay for avoiding the high cost of an unsuccessful defamation defence.

2. Kingston Internet

The second example concerned a 'anti-judge website' constructed by a Mr Hulbert, who claimed in a series of open letters on the website to the Lord Chancellor that he had been denied justice at the hands of a number of identified judges. In response to the letters, the Lord Chancellor's department wrote to the ISP involved, Kingston Internet Limited, describing the statements by Mr Hulbert as offensive and asking the company to remove them. Kingston Internet promptly did so, stating in a letter to Mr Hulbert that he had breached their terms and conditions.

Not only did Kingston Internet remove the comments complained of, but it also closed down the whole website. Mr Hulbert might have had a valid defence to a libel action but, understandably, this was not the concern of the ISP. As mentioned above, under the section 1 defence, an ISP is not entitled to investigate the merits of a claim before taking action. Like Demon Internet, Kingston Internet was merely taking the precautions it felt necessary to avoid any liability.

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