03/02/2020 Godfrey v. Demon Internet Limited [1999] EWHC QB 244 (26th March, 1999) therefore, feel any doubt that, if the writer of a letter shews it to any person other than the person to whom it is written, he publishes it. If he wishes not to publish it, he must, so far as he possibly can, keep it to himself, or he must send it himself straight to the person to whom it is written. There was therefore, in this case a publication to the type-writer" 31. The principle in Day .v. Bream was applied by the Court of Appeal in Emmens .v. Pottle (1885) 16 QBD 354 where Lord Esher M.R. said at page 357 "But the defendants did not compose the libel on the plaintiff, they did not write it or print it; they only disseminated that which contained the libel. The question is whether, as such disseminators, they published the libel? If they had known what was in the paper, whether they were paid for circulating it or not, they would have published the libel, and would have been liable for so doing. That, I think, cannot be doubted. But here, upon the findings of the jury, we must take it that the defendants did not know that the paper contained a libel." 32. In the Golf Club notice board case Byrne .v. Deane [1937] 1K.B. 818 Greene L.J. said at page 837:"Now on the substantial question of publication, publication, of course, is a question of fact, and it must depend on the circumstances in each case whether or not publication has taken place. It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put?" 33. In my judgment the Defendants, whenever they transmit and whenever there is transmitted from the storage of their news server a defamatory posting, publish that posting to any subscriber to their ISP who accesses the newsgroup containing that posting. Thus everytime one of the Defendants' customers accesses "soc culture thai" and sees that posting defamatory of the Plaintiff there is a publication to that customer. 34. The situation is analogous to that of the bookseller who sells a book defamatory of the Plaintiff (see Weldon .v. "The Times" Book Co. Ltd (1911) 28 T.L.R. 143 the case about the books on Gounod), to that of the circulating library who provided books to subscribers (see Vizetelly .v. Mudie's Select Library [1900] 2 Q.B. 170, the case about the book on Stanley's search for Emir Pasha in Africa) (see in particular the judgment of Romer L.J. pages 178-181) and to that of distributors (see Bottomley .v. F.W. Woolworth [1932] 48 T.L.R.530, the case about "The detective story magazine" containing the article "Swindlers and Scoundrels. Horatio Bottomley, Editor and Embezzler.") and (See Sun Life Assurance .v. W.H. Smith (1934) 150 L.T. 211, the case about newspaper posters announcing "More grave Sun Life of Canada Disclosures"). 35. I do not accept Mr Barca's argument that the Defendants were merely owners of an electronic device through which postings were transmitted. The Defendants chose to store "soc.culture.thai" postings within their computers. Such postings could be accessed on that newsgroup. The Defendants could obliterate and indeed did so about a fortnight after receipt. THE AMERICAN AUTHORITIES 36. In deference to the researches of Mr Barca I refer to them but only shortly because I found them of only marginal assistance because of the different approach to defamation across the Atlantic. 37. Mr Barca prayed in aid Anderson .v. New York Telephone Co. [1974] 35 N.Y. 2d 746 where the New York Court of Appeals held there was no publication by the telephone company in the following circumstances. The Plaintiff was a Bishop. One Jackson broadcast on radio urging his listeners to ring two telephone numbers www.bailii.org/ew/cases/EWHC/QB/1999/244.html 6/9