The Law of Defamation and the Internet

Update 4

European Parliament and Council’s Directive on Electronic Commerce (Directive 2000/31/EC)

Update on the UK government’s plans for implementation of the Directive on Electronic Commerce, which affects the liability of Internet intermediaries for hosting or carrying defamatory material

Stop press … Draft Electronic Commerce (EC Directive) Regulations 2002 released – see commentary below

Stop press … Electronic Commerce (EC Directive) Regulations 2002, SI 2013/2002 promulgated – see commentary below

The UK Department of Trade and Industry (DTI) announced on 14 December 2001 that it would conduct further consultations before implementing the Directive on Electronic Commerce in the United Kingdom. The announcement states, in part:

We have listened closely to those who responded to our consultation on implementing the E-Commerce Directive. The need for further consultation was clearly identified as the best course for business and consumer confidence.

The DTI will publish and consult on draft Regulations early in the New Year which will take into account responses from the previous consultations. The Government now expects to implement the Directive during the summer.

A copy of the DTI announcement can be found by following this link. The DTI’s consultation document and further information can be found by following this link. The text of the Directive can be found by following this link.

By article 22, Member States are required to transpose the Directive on Electronic Commerce into their national laws before 17 January 2002. After that time, Member States may be liable to private parties for the consequences of failing to transpose the Directive: see The Law of Defamation and the Internet, para 18.04.

Articles 12–15 of the Directive afford Internet intermediaries with substantial protection from the risk of liability for hosting, caching or carrying defamatory material which they did not create. Articles 12–15 are broader, in several respects, than the protection afforded to Internet intermediaries under existing UK law, and in particular by s 1 of the Defamation Act 1996 (UK). It is therefore conceivable that, after 17 January 2002, Internet intermediaries found liable under United Kingdom law for hosting, caching or carrying defamatory material in circumstances in which they are entitled to be exempted from liability under the Directive might be entitled to recover any damages awarded against them in proceedings against the United Kingdom before the European Court of Justice: see further The Law of Defamation and the Internet, chapter 18.

Stop press

Draft regulations implementing the Directive on Electronic Commerce have been released by the DTI for public comment. A copy can be found by following this link. Further information is available from the DTI website by following this link.

Regulations 17, 18 and 19 of the draft Electronic Commerce (EC Directive) Regulations 2002 follow very closely the form of articles 12, 13 and 14 respectively of the Directive on Electronic Commerce. If regulations 17–19 are promulgated in their present form, they will operate in relation to defamatory material which is carried, cached or hosted by Internet intermediaries as predicted in The Law of Defamation and the Internet, chapter 18.

The draft Regulations do not contain any express implementation of article 15. The extent to which existing UK law may contravene that article is discussed in The Law of Defamation and the Internet, para 18.33.

Stop press

The Electronic Commerce (EC Directive) Regulations 2002 were laid before Parliament on 31 July 2002 and will substantially come into force on 21 August 2002. The regulations incorporate changes following a period of public consultation. A copy of the government’s response to public comments can be found by following this link. The response notes that, among other matters:

(a) the regulations are intended to transpose precisely articles 12, 13 and 14 of the Directive on Electronic Commerce, which concern the liability of intermediaries for carrying, caching or hosting information provided by others;

(b) to that end, the transposing regulations (regs 17, 18 and 19 respectively) have been slightly reworded;

(c) the government has rejected calls for the inclusion of a positive definition of ‘actual knowledge’ for the purpose of the regulations transposing articles 13 and 14 of the Directive on Electronic Commerce (but note the terms of reg 22, set out below);

(d) the government has said it is prepared to consider including in the future additional regulations providing protection from liability for other categories of intermediaries, such as providers of hyperlinks, location tools and content aggregation;

(e) the government has rejected calls for the inclusion of a regulation transposing article 15 of the Directive on Electronic Commerce, which prohibits the imposition of a general obligation on intermediaries to monitor the information they transmit or store, or a general obligation actively to seek facts or circumstances indicating illegal activity (as to the significance of the failure to transpose article 15, see The Law of Defamation and the Internet, para 18.33).

From the time they come into force on 21 August 2002, the Electronic Commerce (EC Directive) Regulations 2002 will potentially provide statutory defences for Internet intermediaries in respect of defamatory material which they carry, cache or host, but which they did not create. As regulations 17, 18 and 19 are intended to transpose articles 12, 13 and 14 of the Directive on Electronic Commerce (respectively), the commentary on those articles in chapter 18 of The Law of Defamation and the Internet will provide helpful guidance on the scope and limitations of the new defences.

Regulation 22 provides:

In determining whether a service provider has actual knowledge for the purposes of regulations 18(b)(v) [caching] and 19(a)(i) [hosting], a court shall take into account all matters which appear to it in the particular circumstances to be relevant and, among other things, shall have regard to –

(a) whether a service provider has received a notice through a means of contact made available in accordance with regulation 6(1)(c), and

(b) the extent to which any notice includes -

(i) the full name and address of the sender of the notice;

(ii) details of the location of the information in question; and

(iii) details of the unlawful nature of the activity or information in question.

Regulation 6(1)(c) requires persons providing information society services to make their details available to recipients and relevant enforcement authorities, including their e-mail addresses, so as to make it possible to contact them rapidly and to communicate with them in a direct and effective manner.

Regulation 22 is apparently intended to put it beyond doubt that the defences in regulations 18 and 19 for intermediaries who cache or host defamatory Internet material which they did not create will ordinarily be defeated where the intermediaries are put on notice, even by e-mail, of the existence of the offending material.

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