-2971.
His Lordship was plainly indicating (by the words which I have
italicised) that if the defendants had composed or written the libel, they would
obviously have been liable as first or main publishers, but that since they had
not done so and had only disseminated the libel, it was necessary to consider
their position as subordinate publishers.
72.
Thus, a journalist is undoubtedly to be treated as the (or at least, a)
first or main publisher of a newspaper article, having authored it in the first
place. The originator of a forum posting occupies a like position. As stated
previously, the process of publication is bilateral. At one end are those who
create the article and participate in its dissemination. At the other, is the reader,
listener or viewer who receives it. There is no conceivable reason for ignoring
the originator of the posting as the first and one of the main publishers. Indeed,
as we have seen, the appellants pursued some of the originators as publishers of
the defamatory statements and obtained financial settlements from them.
73.
It does not assist the appellants’ argument to postulate the crashing
of the forum’s server, resulting in failure of the publication process. To suggest
that this shows that the only publisher is the forum provider involves a
misdirected “but for” argument. True it is that “but for” the proper functioning
of the forum’s server, the hypothetical defamatory statement would not have
been published to persons seeking to access the website. But that does not
provide a basis for excluding the originator as a first or main publisher. It
remains also true that “but for” the originator making the defamatory posting in
the first place, there would be no libel to convey to the ultimate recipient.
Where the server does not crash and the chain of publication is completed, the
originator is seen to be an obviously essential first or main publisher in the
bilateral publication process. I therefore reject the argument that in the absence
of any other candidate, the respondents must be held to be the only first or main
publisher.
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