In January 1997 Laurence Godfrey discovered that some unknown person had 'posted' an article attributed to him on the Internet under the Newsgroup 'soc culture thai'. It was squalid, obscene and defamatory. Originating in the usa on 13 January 1997, the 'posting' invited replies to Mr Godfrey and gave his e-mail address. The forgery was read by Internet users in the uk and throughout the world.
On 17 January Mr Godfrey sent a letter by fax to the managing director of Demon Internet Ltd, which was responsible for distributing the fraudulent article, requesting it to remove the posting from its Usenet news server. Whilst admitting that it could have complied with this request, the defendant allowed 'publication' to continue until the scheduled expiry of the article on 27 January 1997.
For those of you who struggle with the terms, Internet is the worldwide computer network providing, among others, three facilities: e-mail, which is normally electronic mailing from one sender to one recipient; World Wide Web (www), which provides a facility for one to many publication of widely sourced information; and Usenet, which is one to many publication of a single author's article, which is known as a 'posting'.
Information Service Providers (isps) disseminate the postings on the Internet. In this case Demon Internet Ltd was the isp responsible for publication of the material that libelled Mr Godfrey.
The defendant contended that it was not the publisher of this posting, but that even if it was, Section 1 of the Defamation Act 1996 provided a defence under 'innocent dissemination'.
In defamation proceedings, a successful defence is dependent on showing that three conditions are met: that the defendant was not the author, editor or publisher of the statement; that he took reasonable care in relation to its publication; and that he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.
Justice Morland, who presided over this case, ruled that the defendant could not 'avail itself of the defence provided by Section 1' of the Act because, after 17 January when the nature of the offending material was brought to its attention, it 'chose not to remove it from its Usenet news server'. In other words, it had knowingly contributed to publication.
Referring to an 1837 case (Day v Bream) where the defendant was the porter of a coach office in Marlborough whose business it was to deliver parcels, Morland pointed to Justice Patteson's decision that, while the parcels had contained libellous material, provided that the Defendant could 'show his ignorance of the contents' he was innocent.
'Publishing' was deemed by Morland to take place when, as Lord Esher had decided in Pullman v Hill and Co (1891), 'the writer of a letter shows it to any other person other than the person to whom it is published'.
Morland also referred to Bryne v Deane (1937), where Justice Greene was unwilling to accept that even though a golf club had not published offending material on its noticeboard, no defence existed for it after it refrained 'from removing or obliterating the defamatory material'.
All of this has important implications for architects using Internet, and indeed for the riba in its operation of ribanet. Firstly, architects must take care not to libel any other party when issuing information through any electronic communication medium that can be accessed by parties other than the person to whom the architect is communicating. (This can even include e-mail communications within an organisation.) Secondly, the riba must be careful that material it publishes on behalf of ribanet users is not defamatory.
Under the Godfrey v Demon Internet case Morland found the defendant guilty for the period after 17 January when it had received notice of the defamation. No doubt a case will soon emerge to test the liability of an isp for the period between 'publication' of material and a request for its removal. If such a case is upheld, ribanet would be at even greater risk of future libel actions.