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UK lawyer threatens Facebook, mulls action against ISPs to block defamation

The lawyer who has threatened Facebook with a defamation suit on behalf of boxing promoter Frank Warren has said that he may take action against internet service providers (ISPs) for US-published defamation.15 Sep 2009

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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