-25These new intermediaries are conduits for other people’s speech and communications.
Indeed, unlike twentieth century media, a key element of their business models is
providing widespread, democratized, access to media and encouraging participation.
That is because their business models depend on user-generated content ...”
60.
In contrast, as Professor Balkin points out:
“The ‘traditional’ or ‘legacy’ media of newspapers, television, radio and cable
television merge content delivery with content production. They tightly control the
messages that they publish or broadcast.”
61.
The present respondents, as providers of the discussion forum,
belong to the class of the “new intermediaries” described above. They were not
the originators of the defamatory statements complained of. Those statements
were the result of their having facilitated the speech of others in a forum hosting
a large volume of many-to-many communications. Should the law of libel treat
the respondents as main or subordinate publishers?
I.
Authorization
Mr Thomas’s first argument in support of depriving the respondents
62.
of the innocent dissemination defence is that they authorized the making of the
offending statements and should, on that basis, be treated as the first or main
publishers.
63.
Plainly, if a defendant knew the content of a defamatory article and
authorized or participated in its publication, that defendant would be liable as a
main publisher. As Eady J pointed out in Bunt v Tilley, “It is clear that the state
of a defendant’s knowledge can be an important factor”54 – a point to which I
shall return. But in the present case, it is not in dispute that the respondents
were unaware of the offending words until some time after they had been
published on the forum. This is not a case where liability as publisher can be
founded upon vicariously liability for the publishing acts of employees or upon
rules for attributing liability to a corporation for the acts of its organs or agents.
54
[2007] 1 WLR 1243 at §21.
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