The United Kingdom High Court of Justice, Queen’s Bench Division recently handed down its decision in Bunt v Tilley, holding that an internet service provider (‘ISP’) cannot be held liable purely by virtue of the fact that it plays host to defamatory content:

[36] In all the circumstances I am quite prepared to hold that there is no realistic prospect of the Claimant being able to establish that any of the corporate Defendants, in any meaningful sense, knowingly participated in the relevant publications. His own pleaded case is defective in this respect in any event. More generally, I am also prepared to hold as a matter of law that an ISP which performs no more than a passive role in facilitating postings on the internet cannot be deemed to be a publisher at common law. I would not accept the Claimant’s proposition that this issue “can only be settled by a trial”, since it is a question of law which can be determined without resolving contested issues of fact.

[37] I would not, in the absence of any binding authority, attribute liability at common law to a telephone company or other passive medium of communication, such as an ISP. It is not analogous to someone in the position of a distributor, who might at common law need to prove the absence of negligence: see Gatley on Libel and Slander (10^th edn) at para 6-18. There a defence is needed because the person is regarded as having ‘published’. By contrast, persons who truly fulfil no more than the role of a passive medium for communication cannot be characterised as publishers: thus they do not need a defence.

In essence, the Court draws a distinction between people who knowingly permit the publication of defamatory content, and people who who have no reasonable opportunity to prevent such publication. This seems like a sound distinction — especially in an electronic realm. If a person knowingly permits a defamatory communication, but was in a position to prevent it, they should clearly be liable; however, liability should not attach to a web host or ISP who unwittingly carries such communications to their recipients, since they are not in such a position.