-20the club’s notice board was an act of trespass. A person who defaces an
occupier’s walls with graffiti prima facie does not do so with the approval or
encouragement of the occupier.
What this line of cases addresses are the
conditions which must be satisfied before the occupier can be regarded as
having turned himself into a publisher of the libel. That occurs only if the
plaintiff shows that the occupier became aware of the libellous statement on his
premises and allowed it to remain in place in circumstances which justify the
inference that he has adopted or ratified its publication. If the occupier was not
aware or if the inference cannot properly be drawn, he does not make himself a
publisher of the trespassing inscription and is not liable at all. These rules are
therefore not about relieving a person’s prima facie liability as a publisher but
about whether or not an occupier is constituted a publisher. Since it is about
establishing the occupier’s liability as a publisher (and not about a publisher
establishing a defence), the onus rests on the plaintiff.
49.
It follows from the distinctions drawn above that I do not share the
approach in some of the reported cases involving libel in an internet context
where the Byrne v Deane principles appear to have been treated merely as a
facet of the innocent dissemination defence or the defence under section 1 of the
Defamation Act 1996, in the United Kingdom.44
G.
50.
The Byrne v Deane principles inapplicable
Once the nature of the Byrne v Deane principles is grasped, it
becomes clear that they do not apply to internet platform providers like the
respondents.
The provider of a discussion forum is in a wholly different
position from that of the occupier of premises who is not in the business of
publishing or facilitating publication at all, but who has had imposed on him the
defamatory act of a trespasser.
44
Godfrey v Demon Internet Ltd [2001] QB 201 at 208; Davison v Habeeb and others
[2011] EWHC 3031 at §34; Tamiz v Google Inc [2013] EMLR 14 at §26-36.
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