-33were innocent disseminators of a thing which they were not bound to know was
likely to contain a libel.”67 And in Vizetelly, Romer LJ spoke of the defendant
being “innocent of any knowledge of the libel contained in the work
disseminated by him.”68
84.
There may well be scope for argument in any particular case as to
what the internet equivalent of the article or “thing” or “work” whose contents
are known to the publisher should be taken to be. However, that debate is in my
view of little consequence. The important question is whether the publisher
knew or can properly be expected to have known the content of the article being
published. Eady J stated that knowledge of “the relevant words” contained in
the article complained of must be shown. That should be taken to mean that the
publisher must know or be taken to know the content – not necessarily every
single word posted – but the gist or substantive content of what is being
published, to qualify as a first or main publisher. Such knowledge may exist in
relation to the content of a particular posting or a particular discussion thread or
group of discussion threads, it being irrelevant whether the provider realised
that such content was in law defamatory.69 I reject in any event the appellants’
suggestion that a discussion forum provider should be treated as having
knowledge of the content of every message posted on the forum and deemed to
be a first or main publisher thereof.
K.3
85.
The control criterion
The requirement that a first or main publisher must also be shown to
have control over the published content (meaning the ability and opportunity to
prevent its publication) reflects the law’s policy of mitigating the strict
67
(1886) 16 QBD 354 at 357 (Italics supplied).
68
Vizetelly v Mudie’s Select Library Limited [1900] 2 QB 170 at 180 (Italics supplied).
69
See Eady J in Bunt v Tilley [2007] 1 WLR 1243 at §23, as to the irrelevance of
knowledge regarding the legal significance of the statement published.
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