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Defamation - the intermediaries defence


Lawdit Solicitors - Expert Author

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4 September 2011

The Defamation Act provides a defence to protect intermediaries, who otherwise would be held liable for publishing a defamatory statement on the internet pusuant to section 1 Defamation Act. This codifies what had previously been described at common law as the innocent dissemination defence.

Pursuant to section 1(1)(a), (b) and (c), Defamation Act a person has a defence to an action for defamation if he shows that he:

  •  was not the author, editor or publisher of the statement complained of;
  •  took reasonable care in relation to its publication; and
  •  did not know, and had no reason to believe, that what he did caused or contributed to the publication of a defamatory statement.

The meanings of author, editor and publisher are defined in section 1(2) of the Act:

  •  author means the originator of the statement;
  •  editor means a person having editorial or equivalent responsibility for the content of the statement or the decision to publish it.
  •  Publisher means 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. It does not mean publisher in the common law sense.

However, pursuant to section 1(3), Defamation Act, a person will not be considered the author, editor or publisher of a statement if he is involved only:

  •  In processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded;
  •  As an operator or provider of a system or service by means of which a statement is made available in electronic form; or
  •  As the operator of or provider of access to a communications system by means of which the statement is transmitted, or made available, by a person over whom he has no effective control.

ISPs and other intermediaries can benefit from the section 1 defence, but in practice the requirements referred to above under section 1(1)(b) and (c) of the Defamation Act to show reasonable care and lack of knowledge represent a barrier to anyone trying to rely on this defence.

Riyaz Jariwalla is a solicitor who specialises in intellectual property law and commercial litigation.

About the Author

Lawdit Solicitors offer services and advice for litigation, commercial contracts, Intellectual Property and IT legal agreements. We are experts in commercial law with a heavy emphasis on Intellectual Property, Internet and e-commerce law. Lawdit is a member of the International Trademark Association, the Solicitors' Association of Higher Court Advocates and we are the appointed Solicitors to the largest webdesign association in the world, the United Kingdom Website Designers Association.

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Article Published/Sorted/Amended on Scopulus 2011-10-17 23:10:13 in Legal Articles

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