03/02/2020 Godfrey v. Demon Internet Limited [1999] EWHC QB 244 (26th March, 1999) "None of this means, of course, that the original culpable party who posts defamatory messages would escape accountability. While Congress acted to keep government regulation of the Internet to a minimum, it also found it to be the policy of the United States "to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer". Congress made a policy choice, however, not to deter harmful on-line speech through the separate route of imposing tort liability on companies that serve as intermediaries for other parties' potentially injurious messages" 45. In my judgment the English 1996 Act did not adopt this approach or have this purpose. 46. Lunney .v. Progidy Services [1998] WL 999836 (NYAD 2 Dept) has factual similarity to the present case. 47. Bracken J.P. stated the facts:"Some infantile practical joker with access to a computer sent an offensive electronic message (hereinafter email) to a Boy Scout leader, infusing the text of the message with threats more likely to perplex than actually to intimidate an adult recipient. The intended victim of this prank appears to be less the Boy Scout leader himself than the plaintiff, Alex G. Lunney, who was then a 15 year old prospective Eagle Scout, and whose name appeared as the signatory and author of the e-mail message in question. The charade was, as they say, crude but effective, in that the plaintiff was initially suspected of having sent the threatening piece of electronic correspondence" In his amended complaint, the plaintiff expanded his factual allegations in order to encompass two "bulletin board" messages posted with the help of Prodigy's service." 48. Bracken J.P. said "We conclude that Prodigy cannot be held legally responsible for it, nor for the allegedly defamatory bulletin board postings, because (1) Prodigy did not publish the statement, and (2) even if Prodigy could be considered a publisher of the statement, a qualified privilege protects it from any liability given the absence of proof that Prodigy knew such a statement would be false" "our application of the common-law qualified privilege recognised in Anderson also renders the outcome in this case in complete harmony with current Federal statutory law contained in the Communications Decency Act (47 USC Section 230 et seq") 49. In my judgement at English Common Law Progidy would clearly have been the publisher of the practical joker's message and therefore Lunney does not assist the Defendants. CONCLUSION 50. In my judgment the defamatory posting was published by the Defendants and, as from the 17th January 1997 they knew of the defamatory content of the posting, they cannot avail themselves of the protection provided by Section 1 of the Defamation Act 1996 and their defence under Section 1 is in law hopeless. Therefore the Plaintiff's summons to strike-out succeeds. 51. With regard to the Defendants' application to amend the Defence I make no definitive ruling but indicate that it is likely to succeed. 52. It may also be helpful to suggest that on the basis of the proposed Amended Defence any award of damages to the Plaintiff is likely to be very small. © 1999 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: http://www.bailii.org/ew/cases/EWHC/QB/1999/244.html www.bailii.org/ew/cases/EWHC/QB/1999/244.html 9/9