UK Court Rules on ISP Liability

The UK Court, Queen’s Bench division issued an important decision on the liability of Internet service providers late last week.  Unlike the U.S., which established statutory immunity for intermediaries where they simply provide the forum for publication, Commonwealth countries such as the UK, Canada, and Australia still rely on common law principles leaving some question about the standard of liability for intermediaries for allegedly defamatory content posted on their sites.

Bunt v. Tilley involved an attempt to hold AOL, Tiscali, and British Telecom liable for allegedly defamatory postings.  The claimant relied on the Godfrey v. Demon Internet case to argue that the court could hold the ISPs liable.  That case has generated concern among ISPs in Canada as it does hold out the prospect for liability.  The court was clearly uncomfortable with that decision, however, issuing a decision that was generally sympathetic to the ISPs.

In particular, the court concluded that "an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law." That is the good news as it provides some comfort to ISPs who can rely on this case to argue that they are not liable for doing nothing more than hosting content.
The bad news for ISPs is that they still face liability where they are put on notice about allegedly defamatory content. The court did acknowledge that "if a person knowingly permits another to communicate information which is defamatory, when there would be an opportunity to prevent the publication, there would seem to be no reason in principle why liability should not accrue."

While the decision is helpful, Canada and other Commonwealth countries should still consider establishing statutory protections for ISPs since those intermediaries continue to have incentives to remove what may be legitimate content based solely on being placed on "notice" that they are hosting allegedly defamatory content.  When presented with a notice, most ISPs will remove the content without consideration for whether it is a legit claim because they run the risk of liability for failing to do so.  It should take more than just a notice to remove this content.  Much like child pornography and copyright, it should take a court order.


  1. Extent of “passive role”
    What exactly a ”passive role” is will be integral to any statutory protections legislated for ISPs, or at least in regards to all the criminal and civil actions ISPs could be facing with their current business practices.

    current ISP practices of “shaping” traffic, prioritising data based on its content, VOIP, P2P for example, and wanting to charge different rates based on type of traffic and dependant on source and destination, like charging Google, for better, faster access to its customers over the internet for example, can hardly be called “passive” acts. The moment an ISP Identifies and discriminates one data stream for another, it immediately becomes an active participant of its transfer between two points, and therefore liable for its contents, or intent.

    Telephone companies have been able to avoid liability for any illegal action involving their service by declaring themselves a “common carrier”, meaning they treat every call equally and are merely acting as a conduit. ISPs cannot claim this status while they are actively treating each packet of data differently dependant not just its size, but its purpose.

    In their short sighted attempts at extracting more money out of their customers, ISPs will now be open to civil and criminal actions from all over the world. The customer also loses out, as the last shred of net privacy is stripped away, Because every email or file will be opened and inspected several times by ISPs to guard themselves against such legal woes.

    All this is assuming of course, that my definition of “passive role” is the one adopted by future legislation, or interpreted by the courts. Before any protections can be afforded ISPs, their desire and practice to “tier” the internet needs to be stopped and eliminated.

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