Operator of an auction website was not found liable in joint tort liability for failing to prevent trademark-infringing actions of its users, who sold counterfeit goods bearing the claimant’s trademark through the defendant’s website. The case was nevertheless stayed, and referred to the CJEU on matters of EU-law based trademark infringement, liability limitation and preventive measures; the latter decision can be found in the EU section of the WILMap. Following the CJEU judgement, the UK case was settled.
This case saw three British ISPs (AOL, Tiscali and BT) being placed at the crosshair of publisher’s liability for defamatory posts shared through the Usenet newsgroups, due to the fact that the said ISPs provided the Internet connection to users who posted the defamatory material in question. The court found that the three ISPs cannot be regarded as publishers of the defamatory statements – instead, they should be seen as passive facilitators, lying outside of the scope of publisher’s liability.
In this case, a defamatory article was posted on the website of the Wall Street Journal Online. The claim against Dow Jones (the publisher of the WSJ) failed due to the finding that no real and substantial tort was committed (only five people were proven to have read the defamatory content, what minimised the damage to reputation), and allowing the case to proceed would constitute an abuse of process.
The E-Commerce Regulations implement the E-Commerce Directive into the UK law, with the three liability “safe harbours” being transplanted through regs. 17, 18 and 19 of the Regulations in an almost mirrored manner. A potentially noteworthy difference in the language of those sections is that while the Directive uses the expression “should not be liable” (in relation to intermediaries), the Regulations expand this phrase into protection from liability “for damages or for any other pecuniary remedy or for any criminal sanction”, so that various forms of injunctive relief are excluded from the implemented provision.
In the case of Godfrey v Demon Internet, a forged posting was shared through the soc.culture.thai Usenet newsgroup by someone pretending to be the claimant. The latter decided to sue the ISP operating the aforementioned newsgroup, for it did not respond to the notice of infringement made by the claimant, allowing the defamatory content to remain available for 10 days (until its automatic expiry). Demon Internet was found to be liable - it was held that as soon as an online service provider becomes aware (ie. acquires actual knowledge) of the defamatory use of its service, it becomes liable as a publisher of the defamatory information. Then, it has to remove the said content expeditiously, in order to prevent the further dissemination of the defamatory material – or incur further liability.
Section 1 of the Defamation Act sets out a defence against liability in defamation, on which online intermediaries might try to rely on. Section 1 states that a defendant in defamation proceedings is protected from liability, provided that “he was not the author, editor or publisher of the statement complained of, he took reasonable care in relation to its publication, and he did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.” It’s worth to add that the term publisher is further defined in section 1(2) as “a commercial publisher, that is, 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.”