Demon Internet Ltd Case

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Case Analysis of Laurence Godfrey v. Demon Internet Limited

By Yaman Akdeniz,

CyberLaw Research Unit, Faculty of Law, University of Leeds, Leeds LS2 9JT.

E-mail: lawya@leeds.ac.uk

Copyright © 1999 Yaman Akdeniz

Published in (1999) Journal of Civil Liberties, 4(2), 260-267 (July).

Please cite as: Akdeniz, Y., Case Analysis: Laurence Godfrey v. Demon Internet Limited, (1999) Journal of Civil Liberties, 4(2), 260-267 (July).

The case citation is: Godfrey v Demon Internet Ltd, QBD, [1999] 4 All ER 342, [2000] 3 WLR 1020; [2001] QB 201 (full decision provided)

The Facts

The case of Laurence Godfrey v. Demon Internet Limited (1) involves the first judicial decision within England and Wales which concerns a defamatory statement made via e-mail through an Internet Usenet discussion group. (2) The case is also the first one to take into account the liability of an Internet Service Provider under section 1 of the recently enacted Defamation Act 1996.

Dr Laurence Godfrey is a lecturer in physics, mathematics and computer science based in London. The Defendant, Demon Internet, is one of the major Internet Service Providers ("ISPs") within the United Kingdom.

On 13 January, 1997, a posting in the USA was made to an Internet newsgroup "soc.culture.thai" (3) which Demon Internet carries and stores through an unknown source. The message was traced back to a forged message which made it appear that it came from the Plaintiff in the case.

On 17 January, 1997, the Plaintiff sent a letter by "fax" to Demon Internet informing the Defendants that the posting was a forgery, and that he was not responsible for its posting via e-mail and requested the Defendants to remove the posting from Demon Internet's Usenet news server as it was defamatory of him. (4)

The defamatory posting was not removed as requested but remained available on the Demon Internet news server until its expiry on about 27 January, 1997. Technically, Demon was in a capacity to remove the posting in question but chose not to do so.

The Plaintiff claimed damages for libel in respect of the posting after notice has been given on 17 January, 1997 that the posting was defamatory.

The Decision

According to Mr Justice Morland, whenever the Defendants transmit postings (including those defamatory postings) from the storage of their news server, they "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." (5)

The Defendants had a choice but they did "chose to store "soc.culture.thai" postings within their computers." Furthermore, the Defendants had the chance and option to "obliterate [the defamatory posting] and indeed did so about a fortnight after receipt" according to Mr Justice Morland's decision. However, Demon Internet did not intentionally remove the message in question but it was removed automatically from Demon Internet's news server approximately 15 days after its initial publication.

According to Mr Justice Morland, "this posting was squalid, obscene and defamatory of the plaintiff." Furthermore, in the judgment of Mr Justice Morland, "the defamatory posting was published by the Defendants and, as from the 17th January 1997 they knew of the defamatory content of the posting, they cannot avail themselves of the protection provided by Section 1 of the Defamation Act 1996 and their defence under Section 1 is in law hopeless."

However, Mr Justice Morland allowed Demon Internet to amend its defence on 23 April, 1999. (6) He stated that various postings allegedly made by the plaintiff himself in various newsgroups "could well be submitted to be puerile, unseemly and provocative. In effect they invite vulgar and abusive response." This issue is relevant to the assessment of the damages by the trial judge (7) and Mr Justice Morland thought that "there is a real danger that the Trial Judge might award damages which were not rightly proportionate to the true injury suffered by the Plaintiff."

Analysis

The main legal issue discussed within this case is section 1 of the Defamation Act 1996 which deals with the defence of innocent dissemination. (8) For the defence to succeed under section 1, the defendant needs to establish that (a) he was not the author, editor or publisher of the statement complained of; (b) he took reasonable care in relation to its publication; and (c) he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

There is no doubt that an Internet Service Provider would qualify as a "publisher" under Section 1(2) of the Defamation Act which defines a commercial publisher as a "person whose business is issuing material to the public, or a section of the public, who issues material containing the statement in the course of that business." However, for the purposes of section 1(3) of the 1996 Act, "a person shall not be considered the author, editor or publisher of a statement if he is only involved-

"(a) in printing, producing, distributing or selling printed material containing the statement;

(c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form;

(e) as the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control."

According