03/02/2020 Godfrey v. Demon Internet Limited [1999] EWHC QB 244 (26th March, 1999) "1(3) A person shall not be considered the author, editor or publisher of a statement if he is only involved(a) in printing, producing, distributing or selling printed material containing the statement; (c) in processing, making copies of, distributing or selling any electronic medium in or on which the statement is recorded, or in operating or providing any equipment, system or service by means of which the statement is retrieved, copied, distributed or made available in electronic form; (e) 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. In a case not within paragraphs (a) to (e) the court may have regard to those provisions by way of analogy in deciding whether a person is to be considered the author, editor or publisher of a statement." "1(5) In determining for the purposes of this section whether a person took reasonable care, or had reason to believe that what he did caused or contributed to the publication of a defamatory statement, regard shall be had to(a) the extent of his responsibility for the content of the statement or the decision to publish it, (b) the nature or circumstances of the publication, and (c) the previous conduct or character of the author, editor or publisher." 19. In my judgment the Defendants were clearly not the publisher of the posting defamatory of the Plaintiff within the meaning of Section 1(2) and 1(3) and incontrovertibly can avail themselves of Section 1(1)(a). 20. However the difficulty facing the Defendants is Section 1(1)(b) and 1(1)(c). After the 17th January 1997 after receipt of the Plaintiff's fax the Defendants knew of the defamatory posting but chose not to remove it from their Usenet news servers. In my judgment this places the Defendants in an insuperable difficulty so that they cannot avail themselves of the defence provided by Section 1. 21. I am fortified in this conclusion by the contents of the Consultation Document issued by the Lord Chancellor's Department in July 1995 and the words of Lord Mackay L.C. during debate on the Defamation Bill on the 2nd April 1996 (see Hansard Col. 214). 22. In the Consultation Document it is said:"2.4 The defence of innocent dissemination has never provided an absolute immunity for distributors, however mechanical their contribution. It does not protect those who knew that the material they were handling was defamatory, or who ought to have known of its nature. Those safeguards are preserved, so that the defence is not available to a defendant who knew that his act involved or contributed to publication defamatory of the plaintiff. It is available only if, having taken all reasonable care, the defendant had no reason to suspect that his act had that effect. Subsections (5) and (6) describe factors which will be taken into account in determining whether the defendant took all reasonable care. 2.5 Although it has been suggested that the defence should always apply unless the plaintiff is able to show that the defendant did indeed have the disqualifying knowledge or cause for suspicion, only the defendant knows exactly what care he has taken. Accordingly, as in most defences, it is for the defendant to show that the defence applies to him." 23. Lord Mackay L.C. said in moving rejection of an amendment of Lord Lester of Herne Hill:"Clause 1 is intended to provide a defence for those who have unwittingly provided a conduit which has enabled another person to publish defamatory material. It is intended to provide a www.bailii.org/ew/cases/EWHC/QB/1999/244.html 4/9