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Illegal Issues concerning Caching and Defamation

Given the vast geographic distances and the multitude of servers on which the data resides it seems quite remarkable that the World Wide Web can operate at the speed it does.

Rather than constantly access the original data some browsers and servers cache the information that they have recently accessed, that is they store copies of the information locally. When a request is received for information in a cache this is accessed rather than a new copy from the original location.

Caching raises issues which will give cause for concern as does the storing of information in general. Information might be inadvertently stored which contravenes legal laws and regulations such as those governing defamation.

Again were the operator is made aware of the existence of such information the operator should act as swiftly as possible to remove the information, or at the very least to post a notice warning of its defamatory nature.

Though there is little argument as to liability where an individual is the primary author of defamatory material, Internet Service Providers ("ISPs") and server operators are very much opposed to being treated in the same manner as distributors or publishers when it comes to defamatory material placed on the Internet by a user, (anonymous or otherwise).

Most cases of defamation on the Internet have involved e-mail or usenet and the judgements of the courts have caused a great deal of concern within the Internet community, especially where server operators or ISPs have been found liable even though the material originated from third parties.

Ignorance of the material does not provide a defence if the operators are made aware of the material itself. The position is altered where the operators hold

themselves out as providing a family orientated service or where they claim to provide screened or moderated information content. In these circumstances they could not claim to have no knowledge of the information prior to being informed of its defamatory content.

Once the operators know of the material they should act immediately. Whether this is to remove the material or post a notice warning of the defamatory nature of the material will depend on the policies of the operators and the information itself. In the court case of Laurence Godfrey -v- Demon Internet Limited (1999), the court stated that it was clear that doing nothing once they have been put on notice will not afford operators protection against an action for defamation. This obviously places the operators in some difficulty. The disparity in resources which exist between the operators on the one-hand and the individual users on the other is a great concern. Any aggrieved party will, if the law permits, seek to take action against the party with the greater resources. This is usually the operator.

The operator will face a dilemma on receipt of a notice that information on the service may be of a defamatory nature. What constitutes an actionable notice? Does an e-mail message or facsimile from the aggrieved party constitute proper notice, or must the notice be in the form of a solicitor's letter? The issue is a real one for if the operator acts to remove a message which then turns out not to be defamatory, then the question arises as to will they be in breach of rights, whether contractual, intellectual property, or otherwise of the originating party? If so then what will be the limit of their liability? If they refuse to act, then they risk being held liable to the aggrieved party. The position is an uncomfortable one and is symptomatic of the difficulties caused by the law surrounding defamation.

The laws concerning defamation under English Law are most certainly enforceable. Operators must decide on what action they will take on receipt of a notice. They may even attempt to clarify matters by publishing their policy on the matter declaring the form of notice that they will act upon and detailing what actions they will take on receipt of such a notice. What they can not do is to state that they will take no responsibility for the information content. They can certainly state that they do not monitor the information content on their services. They can not, however, expect that this will provide any legal protection once they are informed of the existence of the information.

Should you have any queries or concerns relating to the above, please do not hesitate to contact:

Thomas Lowry - BA., LL.B
Robbins Olivey Solicitors
Southern House
Guildford Road
Woking, Surrey
GU22 7UY

Tel: 01483 748500
Fax: 01483 729933

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