Stephen Taylor Heath of law firm Lupton Fawcett is representing
Warren in a dispute with Facebook about allegedly defamatory
comments about him posted there.
Warren threatened to sue Facebook over the use of his name and
image and allegedly defamatory comments posted on the site.
Facebook has since removed some content and banned some users from
posting material.
Taylor Heath said that boxer Amir Khan had considered taking
action but was withdrawing any intention to act. He said that no
decision has been made yet on whether Warren will take further
action.
Even a successful defamation ruling in the UK courts, though,
would be of limited value against a US company. In the US, the
Communications Decency Act (CDA) shields internet hosts like
Facebook from liability for the comments of users, albeit
individual defamers could be sued under UK or US law. If an action
for defamation were successful against Facebook in the UK, it is
unlikely that a US court would see fit to enforce any order to
remove comments against Facebook in the US if that order presented
a conflict with the CDA.
Responding to that problem, Taylor Heath told OUT-LAW.COM that one
option would be to pursue ISPs in the UK for their role in
publication and force them to block access to defamatory
material.
"Our view is that online material is being published in the UK
because it can be viewed in the UK, so action can be brought," he
said. "A potential issue is that ISPs allow this to be broadcast in
the UK, so with defamatory content you can rope in publishers but
also ISPs."
Taylor Heath said that he was not discussing the conduct of any
particular case, but how the problem of defamation in services
hosted overseas could be addressed generally.
"The action would be on the basis that the ISPs are part and
parcel of the publication process," said Taylor Heath. "It would be
the most tangible way of stopping material reaching a target
audience."
If a court did find an ISP liable for material generated on
Facebook by a user it would be a reversal of the approach taken in
previous judgments.
In 2005 John Bunt tried to make three ISPs responsible for
allowing users to make allegedly defamatory postings online. The
court said, though, that as long as an ISP was just a passive
facilitator of communication whose content it did not monitor, it
could not be said to be the publisher of the information.
The UK's E-Commerce Regulations say that a service provider will
not be liable for illegal content posted by any of its users as
long as it does not initiate the transmission, does not select the
receiver of the transmission and does not select or modify the
information contained in the transmission.
This has been interpreted as meaning that as long as it does not
create or moderate the content itself, it will be a 'mere conduit'
for information and not a publisher or author of it.
Even if the ISPs could be found legally responsible there is a
practical problem with the proposed action: action would have to be
taken against all ISPs to avoid customers of one where the site is
blocked simply visiting it via another.
"You would take action against one and make it clear that if
another takes its place you would take action against them also,"
said Taylor Heath in response to this problem.
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