-2151.
The respondents plainly played an active role in encouraging and
facilitating the multitude of internet postings by members of their forum. As
described in Section B of this judgment, they designed the forum with its
various channels catering for their users’ different interests; they laid down
conditions for becoming a member and being permitted to make postings; they
provided users browsing their website access to the discussion threads
developed on their forum; they employed administrators whose job was to
monitor discussions and to delete postings which broke the rules; and they
derived income from advertisements placed on their website, a business model
which obviously benefits from attracting as many users as possible to the forum.
52.
The respondents were therefore, in my view, plainly participants in
the publication of postings by the forum’s users and in that sense they were
publishers from the outset, it being in issue whether they were first or main
publishers or merely subordinate publishers.
I accept Mr Thomas SC’s
submission that they were in a substantively different position from the
occupiers in the notice board and graffiti cases. The relevant question in the
present case is whether, as publishers, the respondents are entitled to rely on,
and have established, the defence of innocent dissemination, relieving
themselves of the strict publication rule which would otherwise be applicable.
The question is not whether, originally being non-publishers, they have, when
fixed with knowledge of the defamatory postings, demonstrated their consent to
and adoption of those postings, turning themselves into publishers.
53.
In this context, I respectfully part company with the reasoning
(adopted on an interlocutory basis) of the English Court of Appeal in Tamiz v
Google Inc. 45 It is reasoning which proceeds on the basis that successful
invocation of the defence of innocent dissemination results in the defendant
45
[2013] EMLR 14, which was adopted by Courtney J in the High Court of New Zealand
in Wishart v Murray [2013] NZHC 540 at §§111-116.
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