-28originator posts the defamatory statement and, before anyone accesses it, the
respondents’ server crashes, making the posting inaccessible by anyone. Such a
situation, he argued, shows that the crucial publisher is not the originator, but
the forum provider.
68.
It is clear law that internet material is published when and where it is
accessed or downloaded in comprehensible form. A person wishing to view on
his computer the webpage containing the relevant material, sends a request to
the URL address of the website on which that material is stored and, in
response, the webpage is transmitted to the requesting computer. When it is
received and accessed or downloaded in a form comprehensible to the person
making the request, the material is “published” for the purposes of libel law.58
69.
However, I do not accept that the originator and any other persons
“upstream” from the forum provider should somehow be ignored.
As Gatley
points out:
“The person who first spoke or composed the defamatory matter (the originator) is of
course liable, provided he intended to publish it or failed to take reasonable care to
prevent its publication.”59
70.
In Emmens v Pottle,60 when contrasting the position of a subordinate
disseminator with that of a first or main publisher, Lord Esher MR stated:
“The proprietor of a newspaper, who publishes the paper by his servants, is the
publisher of it, and he is liable for the acts of his servants. The printer of the paper
prints it by his servants, and therefore he is liable for a libel contained in it. 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?”
58
Godfrey v Demon Internet Ltd[2001] QB 201 at 208-209; Dow Jones & Co Inc v Gutnick
(2002) 210 CLR 575 at §§14-16, 44; Loutchansky v Times Newspapers Ltd (Nos. 2-5)
[2002] QB 783 at §58.
59
Gatley at §6.4.
60
(1886) 16 QBD 354 at 357.
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