-39publisher if, having relevant knowledge or easy access to knowledge and
editorial control so as to be able to prevent publication of defamatory content,
he fails to exercise such control. The subordinate publisher who, in contrast,
forthwith takes all reasonable steps to prevent further publication, should not be
placed in the same category. Whether in any particular case the subordinate
publisher succeeds in proving that he has met those requirements is again a
question of fact. Evidence as to how readily the offending content could be
withdrawn or deleted would be important.
98.
I note in this context that in Metropolitan International Schools Ltd
v Designtechnica
Corpn, 79 Eady J considers the position after defamatory
content is brought to the attention of a search engine operator and points out that:
“There is a degree of international recognition that the operators of search engines
should put in place such a system (which could obviously either be on a voluntary
basis or put upon a statutory footing) to take account of legitimate complaints about
legally objectionable material.”80
99.
His Lordship suggests that :
“...it does not follow as a matter of law that between notification and ‘take down’ the
third defendant becomes or remains liable as a publisher of the offending material.
While efforts are being made to achieve a ‘take down’ in relation a particular URL, it
is hardly possible to fix the third defendant with liability on the basis of authorisation,
approval or acquiescence.”81
M.
100.
The defence of innocent dissemination applied to the respondents
We are only concerned with the 2008 and 2009 statements. It is not
in dispute that the respondents were unaware of the postings containing those
statements until the 2008 statements were subsequently brought to their
attention by the appellants and until they themselves discovered the 2009
79
[2011] 1 WLR 1743 at §54.
80
At §56.
81
At §58.
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