-27messages per hour should intend to confer a sweeping, undifferentiated
authorization on each of them to post whatever unlawful and objectionable
postings they may choose to post. The evidence is to the contrary. As noted
above, 57 the respondents laid down forum rules prohibiting postings with
objectionable content, including defamation, pornography, harassment and
infringing intellectual property rights and employed two administrators tasked
with making deletions and responding to complaints, having power to suspend
or terminate the accounts of repeated offenders. Those rules may not have been
efficiently or evenly enforced. But the stipulation of such rules with their
enforcement from time to time suffices to show that the platform providers were
not authorizing the publication of whatever forum users might choose to post. It
is one thing to encourage heavy traffic to make the site attractive to advertisers,
but another to conclude that such encouragement involved authorising
defamatory postings such as those complained of. I am accordingly unable to
accept the appellants’ “authorization” submission.
J.
67.
A process of elimination
Mr Thomas’s second argument for excluding the innocent
dissemination defence involves the contention that, by a process of elimination,
the respondents must have acted as the first or main publishers of the offending
statements since no other possible candidates exist.
The respondents, as
providers of the forum, he submits, stored the defamatory postings on their
server and conveyed them to any person seeking to access the relevant
discussion threads, there being no other person involved in the act of
publication. It was argued that the originators of the offending postings are not
relevant to the process of publication which should be seen as involving only
the forum provider and the person who accesses the offending material. To
illustrate this, Mr Thomas invited the Court to consider the situation where the
57
In Section B.
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